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Great Wisconsin judges: Marvin Rosenberry, apostle of administrative law

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

During the first part of the 20th century Wisconsin government underwent a fundamental change. Up to 1900 state government was very small. The job of overseeing Wisconsin's affairs could be carried out by the governor, the Legislature and a few employees. But as Wisconsin grew, its economy and society became increasingly complex. The Legislature simply did not have time to oversee the details of such pressing matters as workplace safety and railroad and utility rates. The Progressives responded by creating administrative agencies to handle these matters instead.

The agencies raised serious constitutional questions. Could the Legislature delegate its powers to them? How far could the agencies fill in the details of general laws, such as those saying utility rates must be "reasonable" and workplaces must be "reasonably safe"?

The Wisconsin Supreme Court ultimately recognized that for better or worse, agencies were a new branch of government that was here to stay. Surprisingly it was a former Stalwart, Chief Justice Marvin Rosenberry, who led the way.

Rosenberry was a Wausau lawyer who at one time was active in the Stalwarts' effort to end Robert LaFollette's tenure as governor. When a Stalwart governor appointed Rosenberry to the court in 1916, Progressives gloomily figured that Rosenberry would try to roll back their reforms. But unknown to them, Rosenberry was sympathetic to agencies. He had found as a lawyer that sometimes the only way his small business clients could get fair treatment from larger corporations was by seeking help from state agencies. Rosenberry was also a realist who recognized the traditional system of state government simply would not work any more.

One of Rosenberry's first acts as a justice was to write a famous decision upholding broad powers the Legislature gave the Industrial Commission to prescribe workplace safety regulations. During his long tenure on the court from 1916 to 1950, Rosenberry gave much thought to the question of how far agencies should be allowed to go in making rules. He became recognized as a national expert on the subject.

In the early 1920s, Rosenberry concluded that rather than pretend agencies were simply creatures of the Legislature, it would be better to recognize them openly as a new branch of government. He argued:

Administrative tribunals did not come because anyone wanted them to come. They came because there seemed to be no other practical way of carrying on the affairs of government and discharging the duties and obligations which an increasingly complex social organization made it necessary for the government to perform....Those who have opposed the creation and extension of administrative tribunals have had the best of the argument on legal and constitutional grounds, but have been obliged to yield to an irresistible social pressure. Would it not be wise to recognize this fact, to give it a place in our legal system ... to the end that it may not become a source of tyranny and oppression?

In 1928, in the case of State ex rel. Wisconsin Inspection Bureau v. Whitman, the court adopted Rosenberry's views. Wisconsin became one of the first states in America to take this advanced view of agencies' role in government. Though Rosenberry was never a Progressive, his work enabled the Progressives' innovations in state government to survive long after most of the Progressives had passed from the political scene.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

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