Vol. 76, No. 10, October
2003
Marvin B. Rosenberry
Unparalleled Breadth of Service
During his nearly 34 years on the bench, Chief
Justice Marvin B. Rosenberry left his mark in many areas through the
numerous opinions he wrote. Arguably, he made the most lasting impact on
the area of administrative law, where his ability to recognize changed
circumstances and deal with the realities of change made him a
pioneer.
by
Justice Ann Walsh Bradley
The landmarks of early twentieth century United States history -
World War I, women's suffrage, the Great Depression, the rise of
industry, World War II - dramatically and irreversibly shaped our
nation's history. Marvin Bristol Rosenberry sat on the Wisconsin Supreme
Court through all of these events.
From 1916 until 1950, Rosenberry was one of seven men who grappled
with the constant question of how the principles of law apply to a
rapidly changing world. For almost 21 of his nearly 34 years on the
bench, Rosenberry served as chief justice. By the time of his
retirement, his opinions were published in 91 volumes of the
Wisconsin Reports and he had participated in more than 11,000
cases, approximately 50 percent of all cases heard before the Wisconsin
Supreme Court since its inception. During his tenure, Rosenberry served
with 25 justices. While the tremendous breadth of his service cannot be
over-exaggerated, his legacy is richer and more complex than mere
longevity.
My interest in Rosenberry was piqued by our common bond: he was the
second justice in state history to come from Wausau, and I am the third.
Only 45 years separate our terms of service, but our worlds are ages
apart. Membership on the Wisconsin Legal History Committee, formed in
part to commemorate the Wisconsin Supreme Court's sesquicentennial,
served as the impetus for me to learn more about the life of this
extraordinary man and the career of this influential jurist.
To my delight, one of the initial discoveries was a draft of the
beginnings of an autobiography, found amidst Rosenberry's voluminous
papers preserved at the Wisconsin State Historical Society. Although the
draft was incomplete, covering primarily his private life before his
career on the Wisconsin Supreme Court, it provided insight not only into
his early years but also into the man and jurist he was to become.
Finding this draft autobiography allows me to describe to the reader,
often in Rosenberry's own words, how he journeyed from a small farm in
Michigan to become the longest-serving chief justice in Wisconsin
history.
From Farm Boy to "Ordinary Country Lawyer"
Rosenberry was born in Medina County, Ohio on Feb. 12, 1868, a
seventh generation American. His mother was a teacher and his father
worked at carpentry, logging, and other trades, and, as Rosenberry
recalled, "was worth three or four ordinary men at barn raising."1 Throughout his childhood in Kalamazoo County,
Michigan, he was immersed in farm work: "I commenced to drive a team
almost as soon as I could walk" and "did my first real plowing when I
was ten years old."2
Following the lead of two of his uncles who lived with his family
through much of his youth, he decided to become a teacher. He began
teaching in 1886 at age 18. In late September of that year, Rosenberry
received a telegram summoning him home. His father had been seriously
injured in a farming accident and was thought to be dying. As he
recalled, he perceived this would mark the end of his formal
education:
"When I took the train ... home, believing as I did that Father would
not live, I knew of course that it would be up to me to leave school, go
home, run the farm and look after the family.... I was disappointed as I
had hoped to go on with my school work but I felt it was up to me to do
what the circumstances required me to do and I had no misgivings about
it."3
Rosenberry believed that this trip home would change the future
course of his life. Little did he realize that the change would come in
such an unimagined manner and direction - the study of law and
relocation in Wausau.
His Uncle A.J. also had been summoned to the deathbed. Upon arriving
home, both men discovered that the circumstances were not as dire as
initially related, and that the father's condition was gradually
improving. The next morning Uncle A.J. discussed the future with his
nephew. Rosenberry was planning on teaching for a few years in order to
save money to study medicine and "knew nothing about law or lawyers or
how one went about becoming a lawyer."4
Uncle A.J., a physician in Wausau, suggested that Rosenberry study
law, telling him that there were excellent opportunities for young
lawyers in northern Wisconsin and remarking that he often regretted that
he had not studied law instead of medicine. He "promised to see"
Rosenberry through law school, if he chose that path. Rosenberry
recalled, "[w]e discussed the matter for some hours and I finally made
up my mind to accept his offer and so the course of my life was
changed."5
He entered the law school at the University of Michigan in October
1890 and graduated in 1893. He was admitted to the bar in Michigan and
planned to move to Oregon after helping his father through harvest, but
once again, his life took a different turn. Uncle A.J. was taken ill and
asked for Rosenberry's assistance in running his office. After helping
for six weeks, Rosenberry decided to stay in Wausau and "[s]o, on the
23rd day of August, 1893, I hung out my shingle."6
He practiced law for a number of years as a self-described "ordinary
country lawyer"7 before moving to Madison in
1916 to serve on the court. Although he would go on to hear many cases
of national importance and lasting significance during his tenure as a
justice, his first cases involved, as court cases often do, ordinary
people in difficult circumstances: "That fall I had three cases, one was
procuring the sale of land for an insane woman, another representing a
man who was confined in jail as a pauper, and the third was collecting a
bill for an old chap who had dug out a few stumps for a farmer."8
Early in his career, Rosenberry won a case against a defendant who
was represented by three law firms. "Defeating the three leading law
firms of Wausau," he recalled, "of course did not hurt my standing any
with the general public."9 Shortly after,
one of those firms offered him a partnership, which he accepted. He
approached his early law practice with the same values of self-reliance
and hard work that characterized his entire career: "'From the beginning
I relied upon my own efforts, did my work without assistance and only
consulted my partners when I thought that the interest of the firm was
in some way at stake."10
Rosenberry's family life was not free of sorrows, but it also seems
to have been the source of his greatest happiness. Rosenberry was
married in 1897 to Kate Landfair. They had three children: Florence, in
1898; Katherine, in 1901; and Samuel, in 1903. There were complications
with his first daughter's birth and she died in 1902 at the age of
three-and-a-half. This event had a profound impact on Rosenberry: "While
in after years I sustained many severe losses in the death of members of
my family and friends, nothing ever touched me more deeply than did that
experience."11
Sadly, this was not the only premature death of a close family member
that Rosenberry would endure. In 1917, less than a year after his
appointment to the court, and only months after the family had moved
from Wausau to Madison, his wife Kate died after a brief illness. On
June 24, 1918, Rosenberry married Lois Mathews, dean of women and
professor of history at the University of Wisconsin. They were married
for the rest of his life.
Foray into Politics
During his first years practicing law, Rosenberry was actively
involved in state politics. His political education began in early
childhood: "[my] earliest recollections are associated with political
discussions."12 His father, "rather like
most men who served with the Northern armies during the Civil War, was
an ardent and loyal Republican."13
Rosenberry became active in the Republican party with the McKinley
campaign of 1896. He recalled, "the political setup in 1896 left me no
choice and I became an enthusiastic supporter of the candidacy of
William McKinley. Northern Wisconsin was in desperate straits
industrially and financially."14 Rosenberry
campaigned for McKinley with characteristic energy and dedication,
traveling more than 275 miles by horse and wagon and making more than 30
speeches in support of the Republican ticket.
In the years that followed, there was severe inter-party conflict
between the supporters of Senator Robert M. LaFollette, a Republican
first elected in 1892, and the Stalwarts, the faction of the party that
opposed LaFollette. Rosenberry was a Stalwart, held various leadership
positions, and was intensely involved in the struggle to control the
Republican party. At the 1904 National Republican Convention in Chicago,
a chance occurrence once again changed the direction of Rosenberry's
life.
Upon arriving at the convention hotel, he was advised that the hotel
was short of rooms and was asked if he would be willing to room with
another Wisconsin delegate. His roommate happened to be Emanuel Philipp,
who would later be elected governor of Wisconsin. Rosenberry recalled,
"we shared the room during the convention and so began a friendship
which lasted as long as he [Philipp] lived."15
The LaFollette faction gained control of the Republican party in
Wisconsin and some years later, in 1916, "[w]hile Philipp [a fellow
Stalwart] was in the governor's chair and a good many Stalwarts had held
influential positions in the state organization, the state was still
dominated by Senator LaFollette."16 As
Rosenberry later commented, "LaFollette had the only real political
machine that was ever in existence in my time in Wisconsin."17 It was in this context that Rosenberry faced the
decision of whether to accept a surprising offer of appointment to the
Wisconsin Supreme Court.
Appointment to the Court
In early February 1916, Wisconsin Supreme Court Justice John Barnes,
for whom Rosenberry had done some work in the past, informed Rosenberry
he was resigning and asked if he would accept an appointment to fill the
vacancy, if it were offered to him. In a speech given many years later,
Rosenberry recalled:
"I have never been more surprised in my life than at that suggestion.
While I had been interested in political matters for a good many years,
I had firmly resolved never to be a candidate for public office.
Politics seemed to me to be a too alluring activity for a practicing
lawyer."18
After much deliberation with his family and partners, Rosenberry
decided that he would accept the appointment if it were offered to him,
and informed Judge Barnes of his decision. On the following Saturday, he
received a call from Governor Philipp. The two met in Milwaukee on
Monday, and Rosenberry soon had a new job. His commission was dated
Saturday, Feb. 12, 1916, his 48th birthday. Later, he reflected on the
reasons for accepting appointment even though he knew he would be up for
election in 1918, and he was not at all confident his tenure on the
court would exceed two years:
"[F]irst and I think really foremost, because Kate wished it; second,
I thought if I was defeated in the 1918 spring election I would have two
years experience on the court which would be of definite value to me in
my practice; and third, there was of course the possibility that I might
be re-elected...."19
Immediately after Governor Philipp announced Rosenberry's
appointment, there was "a roar of disapproval from the LaFollette
press,"20 which was not surprising given
his involvement with the Stalwart faction of the Republican party.
During and after his successful campaign for election in 1918,
Rosenberry faced the wrath of LaFollette's supporters, who accused him
of being "a midnight appointee" who was a beneficiary of "big business
operating out of Wausau [that] pulled every string known to that kind of
politics."21
Rosenberry's opponent in the 1918 election was Charles Crownhart, who
had been a secretary of the LaFollette organization for a number of
years. Crownhart had "the support of the entire LaFollette machine,"
access to all of their lists, and even the direct aid of Senator
LaFollette himself, who sent out a letter to the voters of the state
supporting Crownhart's election.22 Despite
this strong opposition, Rosenberry led a successful campaign, a first
step toward an almost 34-year career on the court.
On the heels of his 1918 victory came Rosenberry's re-election in
1919 to the full 10-year term ending in 1929. He was re-elected in 1929,
when he ran unopposed, and in 1939. In 1929, he became chief justice and
served in that position until his retirement; his tenure as chief
justice was almost 21 years, more than eight years longer than that of
any other chief justice in Wisconsin Supreme Court history.
The political overtones of his early appointment and election stand
in stark contrast to his service on the court, which was a true model of
judicial independence. His performance on the court dissolved any doubts
about his suitability for the position. In fact, an editor for the
Wisconsin State Journal who had written a piece disapproving
Rosenberry's appointment later reversed his position. Many years later,
this editor recalled his reasons for writing the original editorial:
"I was new in Wisconsin, had just acquired the State Journal
and I accepted senior Bob LaFollette's advice on all men and matters in
the state.... Bob told me that Rosenberry was just a rank reactionary
... So I editorially disapproved of the appointment and echoed Old Bob's
line of thought."
After reading some of Justice Rosenberry's opinions and chatting with
him, this editor found Rosenberry to be "a real thinker and not a
prejudicial thinker" and wrote an editorial stating that he had been
"wrong in his appraisal of this new judge," and that he "regarded ...
Rosenberry as a judge who would bring added distinction to the
reputation of the court."23
1916-1950: Almost 34 Years on the Bench
|
Bradley
|
Justice Ann Walsh Bradley, U.W. 1976, was elected to
the Wisconsin Supreme Court in 1995. Prior to that, she was a circuit
court judge in Marathon County. Justice Bradley is a member of the
Wisconsin Legal History Committee and has traveled around the state
speaking on topics related to judicial independence and the history of
the Wisconsin Supreme Court.
The author thanks Bryn Leland Martyna, a Stanford Law School student
who worked as an intern in Justice Bradley's office, for her valuable
contributions to this article.
|
Attempting to summarize the contributions Rosenberry
made to national and state law while on the bench is like trying to view
a masterpiece through a microscope. By focusing on any one area, you
risk failing to appreciate the vastness of the whole. The more than
11,000 cases he heard covered a great many subjects. He left his mark in
many areas through the numerous opinions he wrote, but he arguably made
the most lasting impact on the area of administrative law. It was
perhaps his ability to recognize changed circumstances and deal with the
realities of change that made him a pioneer in this area. Rosenberry has
been described as the "Apostle of Administrative Law." This title is
apt, considering that, "during the 1920s and 1930s, the supreme court,
urged on by Chief Justice Rosenberry," was one of the first in the
nation to advance that, given the changed circumstances, "administrative
agencies must effectively be treated as a separate branch of
government."24
Rosenberry developed a theory of administrative law that took into
account the realities of the changing economy and the increased
integration of society. In a 1924 article, in the midst of rapid
economic, social, and legal change, he noted:
"We are, so to speak, turning a corner in social development.... We
are endeavoring to adjust the political and social concepts of an age
predominantly rural and agricultural to one which is predominantly
industrial and commercial."
He saw the recent decisions upholding legislation regulating
conditions of employment, sanitation, housing, and other areas as a
process of adjustment to the relations growing out of the new order by
applying fundamental constitutional principles:
"Many people feel that in thus adapting our legal system to the
demands of the newer order, we have departed from the fundamental
principles of the Constitution. That is not true. The law deals with
legal relations. We have altered our legal concepts so as to make
applicable fundamental principles to relationships which did not exist
before."25
In 1928, these principles were further solidified in the case of
State ex rel. Wisconsin Inspection Bureau v. Whitman.26 In the Whitman case, Rosenberry traced
the evolution of administrative law and openly acknowledged that
agencies did not fit into the traditional three-branch system of
government. He emphasized the necessity of agencies and rejected the
proposition that agencies cannot exercise legislative power.
The significance of Whitman has been widely acknowledged.
According to one authority, "Whitman represented the final step
in the process of endorsing the new role of agencies in government and,
more broadly, endorsing the Progressive vision of the 20th century
service state."27 An attorney who closely
followed Rosenberry's judicial career also praised his approach in
Whitman:
"[P]erhaps more than any of his contemporaries, Justice Rosenberry
will be remembered as an outstanding legal realist because of his
ability to put issues in their true political and social
context."28
In addition to his contributions to administrative law, many other
parts of the masterpiece of his career merit a closer look. Just a year
before the Whitman opinion, Rosenberry authored another
significant majority opinion that highlighted both his recognition of
the limits on governmental regulatory power and his views on the duties
and obligations of all citizens. In Jelke v. Emery,29 the court held that a Wisconsin statute banning
the sale of oleomargarine was unconstitutional. It seemed clear that the
act was passed solely to favor the dairy industry and Rosenberry
forcefully stated that such a law, resulting in "advantage to a
particular class of citizens and to the disadvantage of others" and
passed in the absence of any primary legitimate purpose, could not
stand.30
In the opinion, he also highlighted the obligations of all people
under the constitution, and, in a sense, admonished the legislature for
passing a law that was clearly not within the parameters of the state or
the federal constitution:
"[W]e are moved to observe that the mandates of the constitution are
just as binding upon the conscience of the legislator as upon the
conscience of the judge. The constitution is the mandate of a sovereign
people to its servants and representatives, and no one of them has a
right to ignore or disregard its plain commands."31
Rosenberry also saw significant changes in women's rights during his
career. When he joined the court in 1916, women did not have the right
to vote under the Wisconsin or U.S. Constitution. In 1921 the Wisconsin
Legislature enacted a law to implement the Nineteenth Amendment (passed
in 1920) and to secure much broader rights for women. In 1926, in
Wait v. Pierce,32 the court held
that this 1921 law abolished husbands' common-law immunity from suit by
their wives. The court was "bitterly divided"33 four to three, and Rosenberry wrote for the
majority. Once again, he placed great importance on acknowledging
societal and legal changes:
"At common law the personality of the wife was merged in that of the
husband, and there existed a legal unity. That conception grew out of
conditions which no longer exist . . . . The rigor
of the common law in this respect has been greatly relaxed, and both by
decision and statute married women have gradually attained in law a
place of equality with the husband in the marital status."34
Rosenberry's lasting legacy comes not just from his written opinions,
but also from his leadership as chief justice. The values that guided
his entire career, and indeed his life, also served him as chief justice
from 1929 until his retirement at age 82 on Dec. 31, 1949.
Self-reliance, hard work, capacity for growth, and clear, honest
consideration of legal issues earned him national recognition, as well
as the respect of his fellow jurists.
1950-1958: First Citizen of the State
Consistent with his lifelong involvement in countless state and
national civic organizations, Rosenberry continued to be actively
involved with many social and service groups even after his retirement.
At the presentation of Rosenberry's memorial in 1961, his contributions
to society in the years after he retired from the court were described
as follows:
"Most men would feel that after nearly 60 years of unremitting effort
they were entitled to a little free time. Not so with Justice
Rosenberry. He withdrew from his high judicial post only to don the
robes of 'first citizen of the state,' as many termed and ranked
him."35
Although he left the court at the end of 1949, Rosenberry did not
leave behind his life's work. He became associated in an of counsel
capacity with the Madison law firm of LaFollette, Sinykin & Doyle.
Given that Rosenberry had been intensely involved in opposing LaFollette
many years past, his association with the LaFollette firm is yet another
example of his openness to change and his ability to recognize new
circumstances.
Perhaps most significantly, in 1950 he was designated chair of the
reapportionment committee charged with recommending a plan for the
legislative redistricting of the state. This was no small task, as that
function had not been performed in more than 20 years. At the
presentation of his memorial, his performance in this position was
praised:
"He served with his usual vigor and effectiveness in this politically
volatile capacity, and the report ultimately submitted under his
leadership was adopted by the legislature, a rare tribute to the
committee and his leadership."36
He remained active until a few weeks before his death on Feb. 15,
1958, three days after his 90th birthday.
Conclusion
To characterize Rosenberry as any one thing may be to risk
mischaracterizing him. He was a strong, self-reliant man, who made
contributions not only to many areas of law, but to many areas of life.
His lasting legacy comes from the breadth of his service, and his
capacity for growth. He was greatly admired for his ability to recognize
changed circumstances, and his fidelity to the principles of the law. He
believed in a judiciary that applied fundamental principles of law,
irrespective of political leanings or personal opinions. Perhaps most
impressively, through his life and his career, he lived and breathed his
values and beliefs.
As I have sorted through Rosenberry's papers, trying to pull out the
pieces that will give a tangible sense of who he was, I have developed
quite a fondness for him as a man and admiration for him as a jurist.
The most difficult part by far has been choosing among the many
speeches, articles, and letters to try to give a comprehensive picture
of this remarkable person. I take some solace knowing that I am not
alone; the committee that prepared his memorial also observed, "[t]he
difficulty facing anyone who tries to describe the many-sided
personality of Justice Rosenberry is one of selection."
I think it is fair to say that the committee members overcame this
obstacle with grace in the following testament to Rosenberry:
"He earned but did not demand respect. He was dignified but
approachable. A natural leader, he had a genius for friends, a passion
for selfless public service, and an abiding interest in youth. His
intellectual outlook was not so much that of the scholar as of the even
more-rare individual who serves as an intellectual broker for bringing
scholarship and unresolved problems into fruitful union. Although he was
a man of strong convictions he had trained himself in tolerance of the
convictions of others. . . .
"Optimistic without complacency, shrewd without loss of magnanimity,
farsighted without forgetfulness of the problems of the moment, his
personality provides us with a rare example of balance between depth and
range."37
I concur.
Endnotes
1Marvin B. Rosenberry,
Autobiography 6-7, Marvin B. Rosenberry Papers (on file with the State
Historical Society of Wisconsin (SHSW), Madison, Wis.).
2Id. at 11.
3Id. at 18-19.
4Id. at 18.
5Id.
6Id. at 30.
7Id. at 36.
8Id. at 30.
9Id. at 33.
10Id. at 36.
11Id. at 72.
12Id. at 38.
13Id.
14Id. at 41.
15Id. at 50.
16Id. at 55.
17Id.
18Marvin B. Rosenberry, Address
to "Mr. Toastmaster and Friends" 1-2 (1941), in Rosenberry Papers
(SHSW).
19Marvin B. Rosenberry,
Autobiography 56, Marvin B. Rosenberry Papers (on file with the State
Historical Society of Wisconsin (SHSW), Madison, Wis.).
20Id. at 58.
21Capital Times
(Madison), April 13, 1918, in Rosenberry, Autobiography, supra
note 1, at 57-58.
22Rosenberry, Autobiography,
supra note 1, at 59.
23Letter from Richard Lloyd-Jones
to George I. Haight, Sept. 25, 1950, Rosenberry Papers (SHSW).
24Joseph A. Ranney, Trusting
Nothing to Providence: A History of Wisconsin's Legal System 377
(Madison, 1999).
25Marvin B. Rosenberry, Law
and the Changing Order, 9 Marq. L. Rev. 38, 46 (1924).
26State ex rel. Wisconsin
Inspection Bureau v. Whitman, 196 Wis. 472, 220 N.W. 929
(1928).
27Joseph A. Ranney, Shaping
Debate, Shaping Society: Three Wisconsin Chief Justices and Their
Counterparts, 81 Marq. L. Rev. 923, 948 (1998).
28In Memoriam: Chief Justice
Marvin Bristol Rosenberry, 15 Wis. 2d xxix, xxxix (Nov. 17, 1961).
29193 Wis. 311, 214 N.W. 369
(1927)
30Id. at 323.
31Id. at 321.
32191 Wis. 202, 209 N.W. 475
(1926).
33Ranney, supra note 24,
at 434.
34Wait, 191 Wis. at
208.
35In Memoriam, 15 Wis. 2d at
xxxv.
36Id.
37Id. at xl.
Wisconsin Lawyer