[Congressional Record Volume 140, Number 138 (Wednesday, September 28, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: September 28, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
HONORING JUSTICE ROSALIE WAHL
Mr. DURENBERGER. Mr. President, I rise today to celebrate the
career of a distinguished jurist and a great Minnesotan. On August 31,
Justice Rosalie Wahl--the senior member of the Minnesota Supreme
Court--retired after 17 distinguished years on the bench.
In 1977, Rosalie Wahl made history when Governor Rudy Perpich
appointed her to our State's high court. She was the very first woman
to serve in that capacity--and throughout her years on the court, she
served with great intelligence and independence of spirit.
A woman of firm feminist convictions, she was notable for putting the
law ahead of her personal preferences. In a notorious rape case, she
dissented in favor of the defendant because she believed his rights had
been violated. She recognizes that impartiality in the execution of
justice is the most difficult--and the most necessary--element of the
work of a judge.
Rosalie Wahl is a very impressive Justice, and the pride of the
Minnesota legal system. She will be missed as a judge--but all those of
us who are fortunate enough to know her personally will continue to
treasure her friendship.
Mr. President, I ask my colleagues to join me in congratulating this
distinguished justice on the occasion of her retirement.
I ask that a profile of Justice Wahl from the August issue of Bench &
Bar be included in the Record at the conclusion of my remarks.
The profile follows:
Justice is a Woman
(By Gwenyth Jones)
You didn't give the Supreme Court to a woman ``in those
days,'' any more than you gave a little girl a toy gun or a
boy a doll for Christmas, says former Chief Justice Douglas
K. Amdahl. It just didn't occur to the male legal
establishment to think of a woman justice. ``Those days''
were before Rosalie Wahl was appointed to the Minnesota
Supreme Court in 1977. And, says Amdahl, as her appointment
ended the males-only era, her retirement August 31 will
confirm the new era, one in which the appointment of a woman
to the Court draws no particular notice.
Justice Wahl is now senior member of the Court and one of a
female majority, although the Court has yet to have a female
chief justice. During her tenure she helped initiate and
chaired task forces which made intensive studies of racial
and gender bias in the Minnesota justice system, served on
the American Bar Association's accreditation committee, was
chair of that committee, and eventually chair of the Section
on Legal Education and Admissions to the Bar.
Wahl was appointed by Gov. Rudy Perpich, who had
specifically promised to name a woman to the first Supreme
Court vacancy in January, 1977.
Minnesota feminists had kept Perpich's promise in mind.
When there was a rumor in May that Justice Harry MacLaughlin
might be appointed to the federal bench, the Minnesota Woman
Lawyers had the names of seven women ready to recommend as
his replacement. These they circulated in a letter sent to
women activists throughout the state. Ironically, Wahl was
never identified as a ``favorite'' in any of the speculative
news coverage that followed. Every one of the other women on
the list eventually became a judge and one of them, Esther
Tomljanovich, eventually joined Justice Wahl on the Supreme
Court.
Perpich had never met Wahl; she was one of three
``finalists'' named by a nonlawyer committee he asked to find
suitable candidates. He said he felt the court was tilted
toward justices with corporate law and prosecutorial
backgrounds. The governor interviewed all three finalists
and, he says, was particularly impressed by Wahl's work
directing the criminal practice clinic at William Mitchell
College of Law. Recently, with just a touch of disappointment
in his voice, he said he had hoped she would be ``another
Miles Lord.'' Lord, whom, Perpich greatly admires, is a
former attorney general and federal judge known by many for
his activist devotion to the underdog, and criticized by
others for what they consider undignified, even improper
conduct. Perpich insists he wasn't disappointed in Wahl,
however.
(She says, ``I don't have it in me to be Miles Lord.'')
Running Water and Other Perks
Justice Wahl describes her attitude when she first came on
the bench as one almost of awe: ``It's so nice of you to let
me come in, I'll obey the rules.'' She says she ``didn't
realize the prerogatives of power.'' When asked what
prerogatives she means, she doesn't talk about limousines or
private dining rooms (although the Court has the latter) but
things like the authority to order certificates of
appreciation for volunteer workers on court-appointed task
forces, or to express her views when she swore people into
office.
One prerogative Justice Wahl didn't have was a private rest
room--there wasn't any women's rest room in the Court wing of
the Capitol then. She and staff women had to use the public
rest room off the rotunda until, several years later, after
the chief justice's secretary petitioned the Court, a women's
rest room was installed inside the Court precincts.
Wahl was named in June but didn't take her seat on the
Court until October, because she couldn't be officially
appointed until Justice MacLauglin resigned, and he was
waiting for his nomination to the federal bench to be
confirmed. She made use of the time to read the cases that
would be coming before the Court that fall so she'd be
prepared to hit the ground running. She also called on each
justice. They knew her through hearing her argue almost 100
cases, but she didn't know any of them. (Chief Justice Robert
Sheran had one advantage over his fellows: He had 18 years'
experience working with a woman professionally--Charlotte
Farrish was senior partner of their law firm in Mankato.)
Justice Wahl asked the justices for advice on proper behavior
for justices and what activities she would have to give up.
(She stayed on the mailing list of the Minnesota Women's
Consortium to ``read about all those things that I couldn't
do, but were getting done.'')
When the justice lined up to enter the courtroom for
Justice Wahl's first session, Justice Walter Rogosheske
opened the door for her. ``Oh, you don't need to open the
door for me,'' she said, but Justice Rogosheske, a warm and
courtly man, replied, ``As long as we serve together, I'll
open the door for you.''
``She was very persuasive and had her share of cases where
she changed the Court's mind,'' remembers Amdahl. ``She could
call me an idiot and make me like it,'' says Chief Justice
A.M. Keith.
The Court had had experience with her outspokenness when
she was arguing a criminal case. Dismayed by some of the
questions from the justices, she declared, ``I can't believe
this court agrees with the proposition that only the innocent
are entitled to a fair trial.''
a tough election battle
About ten months after she took her seat, Justice Wahl had
to defend herself in what was surely the most interesting and
perhaps the dirtiest judicial campaign in the state's
history. None of the three men--two district judges and a
former short-term attorney general--who ran against her in
the primary would admit that the fact that she was a woman
had anything to do with it. But the conventional wisdom was
that a woman incumbent would be easier to beat and before she
even took her seat, Wahl had predicted she would be opposed.
The men said they were running because she didn't have enough
experience, although she had argued cases before the Supreme
Court for ten years and had directed the William Mitchell
criminal law program for four years. Second District Judge J.
Jerome Plunkett, one of her primary opponents, described the
program as ``showing [the students] where the criminal court
was'' or ``taking high school students and having them sit in
on a day in court.'' Actually, under the Student Practice
Rule, the senior students handled misdemeanor cases from
beginning to end, preparing them under Wahl's supervision and
presenting them in court under the supervision of public
defenders.
Plunkett also objected to support given Justice Wahl by the
Lawyers Volunteer Committee to Retain Incumbent Justices. The
committee (to which Plunkett had contributed previously) had
existed for years, and had always supported any incumbent
justice who was opposed. In the 1978 election, although only
Justice Wahl was opposed in the primary, Justice C. Donald
Peterson was opposed in the general election, and they ran a
joint campaign. When Plunkett lost out in the primary he
refused to endorse Justice Wahl, saying he didn't think it
appropriate for a judge to make an endorsement in a
``political'' race.
Women of all political shades worked on Justice Wahl's
campaign. And women lawyers, many of whom had not been
politically active, also joined in. Among her public
supporters there were also men from both parties, among them
a former Republican governor. The campaign included all the
kinds of activities of the usual political race except those
Justice Wahl thought might not fit the dignity of a judicial
election. (No pressing the flesh in shopping malls.)
There was a citizens volunteer committee; there were fund-
raising coffee parties and lunches in elegant Lake Minnetonka
houses, talks to clubs, an ice cream social, even--a rarity
in those days--an appearance on a radio call-in show. Twice,
once by car and once by chartered plane, Justice Wahl made a
campaign swing around the state with hour-by-hour schedules
and interviews lined up with local newspapers and radio
stations in half a dozen towns.
After the primary, which eliminated the two trial judge
candidates, the Minnesota State Bar Association took its
traditional plebiscite on judicial candidates and Wahl got
2,547 votes to 779 for Robert Mattson Sr., the other survivor
of the primary. Soon afterwards Mattson began attacks on her
which were strongly resented by many of the bar. First he
filed a formal complaint with the Ethical Practices Board,
charging that her campaign committees were illegally
organized. The board, which had previously approved the
organization, dismissed the complaint.
Mattson was quoted on several occasions as saying that
Justice Wahl had taken positions ``contrary to Minnesota
law'' when she dissented on some criminal cases. The majority
opinion was the law, Mattson declared. He also charged her
with favoring a convicted rapist, perhaps with an eye to
dampening her support among women. She had not hesitated to
be the only dissenter from the decision upholding the
conviction because she believed the defendant's rights had
been violated. Despite her own feminist convictions, she has
dissented since in other, similar cases, thereby earning the
professional dislike of many prosecutors. (One, hearing that
this article was to be written, exclaimed, ``I hope it's not
going to be a tribute!'')
Mattson also charged that Justice Wahl hadn't carried her
weight during the year she had been on the Court, and hadn't
written as many opinions as the other justices. However, he
didn't cite any figures and the rotation system by which
justices are assigned cases from the calendar means that all
of them write approximately the same number of opinions, plus
any dissents they may write. When it was apparent that she
would have a tough election campaign, Chief Justice Sheran
offered to assign her fewer cases, but she refused, since it
would have meant an extra burden for other justices.
In October, Mattson ran a series of advertisements in the
Twin Cities newspapers. One attacked Justice Wahl for her
vote in the rape case. It said Mattson, in contrast, believed
in ``judicial support for the police.'' Another said Justice
Wahl had ``lost 95 percent of her cases.'' C. Paul Jones,
state public defender at the time, says the ad apparently
referred to post-conviction-remedy cases Wahl had argued for
his office and says she ``won every case that possibly could
have been won by any attorney anywhere.''
Justice Wahl and her supporters sang hymns around the piano
in the University Club while waiting for election returns,
which gave her 57 percent of the votes and Mattson 43
percent.
company on the court
She was the only woman on the Court for five years, and on
the last day before Jeanne Coyne was to be sworn in, Justices
Wahl and James Otis, whom Coyne succeeded, were the only
members of the Court around at lunchtime. They went down to
the cafeteria where reporter Betty Wilson was standing next
to them in the line. Said Wilson, ``Well Justice Wahl,
tomorrow you'll have company on the Court.'' Justice Otis
drew himself up and replied: ``I'll have you know she has
always had company on the Court.''
Justice Coyne was appointed by Gov. Al Quie, who had
refused to talk about the possibility of naming a woman or
minority, saying he didn't think it right to name anyone
because of his or her sex or color of skin. (He appointed two
men before Coyne was named.) He says, ``She was the best
candidate offered to me.''
There could hardly have been a greater contrast between two
career women than there was, outwardly, between Justices Wahl
and Coyne. Justice Wahl was married and had four children
before she went to night law school, and gave birth to her
fifth child while she was a student. (She was divorced in
1972.) Her legal experience was all in criminal defense of
indigents. She is an outgoing person who doesn't hesitate to
go around a table in a public restaurant embracing everyone.
Justice Coyne, who is unmarried, is a reserved, quiet person
who admits that some people consider her ``formidable.'' She
was an accountant before she went to the University of
Minnesota Law School, and immediately after graduation got a
job with Meagher Geer, who, she says, ``turned me loose.''
Her practice covered real estate, tax and estate planning,
and related fields. At one time she was up for consideration
for the 8th Circuit Court of Appeals and got as far as going
to Washington to be ``vetted.'' But she killed any chance she
had by saying, after being escorted around, questioned by one
person after another, ``Nobody has asked me whether I'm
interested in this job.''
Both women shun labels. Although Justice Coyne admits to
being more ``conservative'' than the rest of the Court, she
says she doesn't mind being the only conservative, pointing
out that she was the only woman in a firm of about 20 men for
years. She says some things happened to her during her
practice that might have been considered sexual harassment,
but she was too busy to pay attention, adding, ``Nobody ever
took me lightly twice.''
Justice Coyne says she believed the biggest thing she could
do for other women who might aspire to come after her was
``to be a really good, competent lawyer.' But she helped
organize the Minnesota Women Lawyers, and, when the Equal
Rights Amendment was under consideration, she was a member of
a speakers bureau which went out campaigning for the ERA.
Justice Wahl says she didn't realize until after Justice
Coyne came to the Court ``that I really had been alone, in a
way.'' All the men were friendly and helpful, she says, but
there are some little things one women can share with another
that she can't with a man.
Another thing Justice Wahl says she didn't realize at first
was ``how many male lawyers there seemed to be who had spent
their careers positioning themselves to get on the Supreme
Court'' and resented not being named. Through the grapevine
she heard of remarks made at bar social events like ``I
worked so hard all these years and see what happens.''
Since the Court has had a four-to-three female majority,
there has never been a down-the-line gender division on any
case, according to Chief Justice Keith; but when Justices
Wahl and Coyne were still the only women they dissented
together in two cases (Abuzzahad and McClelland) denying
permanent maintenance to women divorced after several decades
of a traditional marriage. ``The men on the Court were
generally good on gender discrimination,'' Justice Wahl says,
``but they just couldn't understand the situation of a women
of 50 or 55 with a permanently diminished earning capacity.''
In Her Opinion(s)
The opinions Justice Wahl wrote which she particularly
remembers range from ruling that witnesses can't testify
about things they remember under hypnosis to giving
confidentiality protection to group therapy sessions. The
latter case came when the Court's calendar was so crowded--
about 1,500 cases a year--that it frequently issued summary
affirmations, or decided cases without oral arguments, and
the group therapy case almost fell through the cracks. But
Justice Wahl felt the public interest was at stake, not just
one defendant's, and persuaded the Court to give the case a
full hearing with amicus briefs.
Minnesota lawyers are indebted to Justice Wahl for one of
her memorable cases: The Court ruled police could not get a
warrant authorizing the search of a lawyer's entire office if
they wanted material concerning one client who was under
investigation. The Court said police would have to subpoena
the specific file, which a judge would then review in camera.
But Justice Wahl's biggest satisfaction has been ``just
knowing my being here has made a difference. Maybe not as
much difference as I think needs to be made, but I did make a
difference.''
Chief Justice Keith says Justice Wahl ``created the sense
of fairness on the Court,'' and thinks that in the long run
her greatest contribution will have been her work on the
gender and racial bias task forces.
Only two of Justice Wahl's five children are connected with
the law: Sarah, whose husband, Michael Davis, was recently
appointed a federal judge, is in the Hennepin County
Attorney's office and her youngest daughter, Jenny, is in the
Management Information Service Department (MIS) of Fredrikson
& Byron in Minneapolis. She has six grandchildren, ranging
from one and a half months to 24 years old.
Sarah Wahl has always been in the county attorney's civil
division, with offices far from the criminal division, but
she occasionally hears remarks from prosecuting colleagues
like, ``Well, I see your mother has done it again'' when
Justice Wahl has voted for reversal on due process grounds.
Justice Wahl refuses to lay out a schedule for her
retirement. First she's going to relax, because she wants
``to see if there's any cream to rise to the top.'' Then, she
says, ``I'll try to find things that are important for me to
do that might not be done if I don't do them.''
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