Vol. 76, No. 10, October 2003

Marvin B. Rosenberry
Unparalleled Breadth of Service

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.

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