[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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