Minnesota Supreme Page 1 Court Historical Society July 2016

Calendar of Events INSIDE THIS ISSUE: Memorials to 2  July 14, 2016 - Education Committee Deceased Justices— Meeting ( Judicial Center - 2:00 Highlighting Justice p.m.) William Mitchell Major Minnesota 3  October 6, 2016 - Justice Jeopardy Decisions— (Kiernan’s Pub - 5:00 p.m.) Highlighting Near v.  November 3, 2016 - Annual Meeting/ Minnesota Reception ( Club - 5:00 p.m.) Committee Activities 4  January 20, 2017 - High School Essay Court Administration: 5 Contest - Submissions Due Profiling Grace Kaercher Davis  March 2017 - High School Essay Con- test - Winners Announced Trivia Answers 6  May 2017 - State History Day (University Membership Info 6 of Minnesota)  Summer 2017 - Supreme Court Law Clerk Reunion (Town & Country Club - 12:00 DID YOU KNOW? p.m.)  Justice William B. Mitch- ell’s son, William DeWitt Mitchell ,served as U.S. Solicitor General (1925-29) and U.S. Attorney General (1929-33), and his grandson William Mitchell served as General Counsel of the U.S. Trivia Questions Atomic Energy Commission.  Hon. , who served as Associate In 2014 and 2015, the Society hosted sessions of Justice Jeopardy, pitting two teams of Justice of the Supreme judges and lawyers against each other in answering court trivia questions. The next Court of Minnesota Territo- ry (1857-58) was the son of session of Justice Jeopardy will be held on October 6, 2016. To warm up for that event, U.S. Associate Justice Sam- try your hand at these trivia questions. uel Nelson and served as the 1. Several Justices resigned to take other positions in gov- first U.S. District Judge of ernment. Which deceased justices left the court to: the District of Minnesota (1858-96). a. Run for Governor; b. Join the United States Justice Department; or c. Become a federal judge. YOUR COMMENTS INVITED 2. Which Justice served the shortest term on the Minnesota Supreme Court? We invite your comments or 3. Which Justice served the longest term on the Minnesota Supreme Court? observations on the contents 4. Which Justice(s) served two non-consecutive terms? of this Newsletter. Please send to [email protected]

Trivia answers on page 6

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Testimony-Memorials to Deceased Justices—William Mitchell* By

Shortly after the establishment of the dorsed by both parties until the election him Minnesota has lost one of her Minnesota Supreme Court Historical of 1898, when the Republican party brightest ornaments – one of her most Society, an ambitious committee set out failed to endorse him and, surprisingly, distinguished and valuable citizens. to revive a wonderful tradition that had he lost re-election when the Republican been abandoned in the 1970s, when our endorsed candidates swept the election at state discontinued the publication of nearly every level. This result is often Minnesota Reports. That tradition, cited as a major reason why Minnesota sponsored jointly by the Supreme Court later made judicial elections non- and the Minnesota State Bar Associa- partisan. In later years, Justice Mitchell tion, was to present memorials for de- agreed to become the dean of the St. ceased justices, in open court before Paul College of Law, but unfortunately the entire Supreme Court. Those me- died before the next school term began. morials were then published in Minne- sota Reports. Inexplicably the tradition The official memorial was as follows: ended when the publication ended. On the afternoon of October 2, 1900, in the chamber of the house of representa- In 2008, the Society published tives at the state capitol, Hon. James A. “Testimony – Remembering Minnesota Tawney presented to the supreme court, Supreme Court Justices.” The Society then in session, in behalf of the Winona We ask, therefore, that this brief memori- collected all previously published me- and State Bar Associations the following al be preserved in the records of this morials, going back to the 1800s, and memorial of Associate Justice Mitchell, court, together with such other proceed- assigned authors to update those me- who died August 21, 1900, and moved ings as may occur in connection there- morials to include the many justices that the same be spread upon the records with. who had died after the practice of pre- of the court: senting memorials had been interrupt- Eleven other lawyers and justices added ed. William Mitchell, who for forty-three their comments to the memorial, includ- years was a member of the Minnesota ing these comments from then retired Bar, for seven years was judge of the Justice Charles Flandrau, who had been The Society’s newsletter will from time Third judicial district, and for nineteen to time feature excerpts from Testimo- a member of the first Supreme Court of years was an Associate Justice of this Minnesota after statehood in 1855: ny. For this edition, given the recent court, having been called away by death, creation of the Mitchell-Hamline the members of the Winona and state Bar It being my desire that the testimony of School of Law, the memorial to Justice respectfully submit the following, as a the oldest practitioner of the law in the William Mitchell seemed appropriate. testimonial of their esteem and affection state and a member of the first supreme for him while living and as a tribute to his court of the state to the excellencies of JUSTICE WILLIAM MITCHELL memory now that he is gone. the late Judge Mitchell should go on SERVED ON THE SUPREME record in these memorial proceedings, I COURT FOR 19 YEARS, FROM 1881 We honored him for his noble and digni- have prepared a brief but none the less -1900. HE WAS NOT A GRADUATE fied character; we loved him for his heartfelt tribute, which with the permis- OF ANY LAW SCHOOL, BUT fraternal spirit. In all the relations and sion of your Honors I will present. “READ THE LAW” IN THE OFFICE duties of life he aimed at what was true OF AN ATTORNEY FRIEND IN To be a good and just judge, a man must and pure and good. His large intellectu- be endowed with many, if not with all, MORGANTOWN, VIRGINIA. FOL- al gifts and liberal culture gave him LOWING ADMISSION TO THE the virtues of mind and disposition. He prominence and power. His fine social must have good practical sense, experi- BAR, HE RELOCATED TO qualities, uniform courtesy, and kindness WINONA, MINNESOTA, AND ence, and understanding, a clear and won the favor of all who knew him. His quick perception of facts, with the power SERVED VARIOUSLY AS A LEGIS- spotless integrity and conscientious fi- LATOR, COUNTY ATTORNEY, of logical arrangement and application delity in the discharge of duty won their of them to the matter in hand, aided and DISTRICT JUDGE AND THEN SU- confidence. It falls to the lot of few men PREME COURT JUSTICE. DURING guided by a thorough knowledge of the to be as universally respected as was law in point. He must be absolutely HIS TIME ON THE COURT, HE Judge Mitchell. GAINED NATIONAL PROMINENCE impartial and free from prejudice. He FOR “CLEAR, LUMINOUS AND must be patient to listen and to learn. He FORCEFUL” OPINIONS, OFTEN That he was a great lawyer and a great must be courageous and firm without CITED BY OTHER COURTS AND jurist, great in legal learning and great in obstinacy but tempered with mercy. His LEGAL SCHOLARS ACROSS THE those qualities of mind and character life conduct must be so exemplary as to COUNTRY. HE WAS CALLED BY essential to judicial eminence, is the preclude the possibility of wrong doing SOME SCHOLARS, ONE OF THE uniform testimony of the Bar of the or wrong thinking. Judge Mitchell pos- BEST JUDGES IN THE COUNTRY. state. In his large and invaluable contri- sessed all these attributes in an eminent bution to the judicial literature of the degree. In his death, Minnesota mourns state and nation, he has shed undying the loss of one of her most beloved and Judicial elections in those days were lustre upon the Bar and the courts with distinguished citizens. partisan. Justice Mitchell had been en- which he was directly related. In losing

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Major Minnesota Decisions—Highlighting Near v. Minnesota By Steven Aggergaard

Of all the cases that Minnesota has sent to took more than 14 minutes for Williams The Minnesota Supreme Court consid- the United States Supreme Court, Near v. to die. ered the Pioneer Press’ detailed descrip- Minnesota, 283 U.S. 697 (1931), is tion of Williams’ execution and, in a among the most noteworthy. In Near, the Although the newspaper accounts eventu- unanimous decision, held that although court derailed an attempt to shut down a ally were credited with prompting the the accounts were true, the newspaper Minneapolis newspaper on grounds it was Minnesota Legislature to eradicate the had abused its “inviolate” free-press right. a “nuisance,” and in doing so used a Min- death penalty in 1911, at the time they As Justice Charles L. Lewis wrote, the nesota case to establish the rule of law violated the “Midnight Assassination Law Pioneer Press had no “constitutional right that prior restraints of speech are uncon- of 1889,” which sought to mitigate the to publish every fact or statement which stitutional. spectacle of executions by banishing may be true” and the Legislature was within its police power to ban expression ALTHOUGH THE CASE’S LEGAL that was “detrimental to public morals.” PRINCIPLE IS NOW WELL-KNOWN, WHAT IS LESS-KNOWN BUT NO With Gitlow still undecided, the Pioneer LESS IMPORTANT IS THE MINNESO- Press had no grounds to file a petition for TA SUPREME COURT’S ROLE IN writ of certiorari. In coming years antiwar THE CASE, WHAT LED OUR COURT activists would cite the Fourteenth TO BELIEVE IT HAD AUTHORITY Amendment when challenging their pros- TO HELP SHUT DOWN A NEWSPA- ecutions under laws that criminalized PER IN THE FIRST PLACE, AND THE antiwar speech, but in 1907 World War I IMPORTANT PLACE NEAR HOLDS IN was still years away. FIRST AND FOURTEENTH AMEND- MENT JURISPRUDENCE. Among those activists was C.H. Holm, a them to a time before sunrise and forbid- member of the Nonpartisan League, who That story begins not in Minneapolis but ding newspapers from publishing any was prosecuted under a Minnesota law in St. Paul, in the basement of the Ram- other than their mere occurrence. that criminalized speech that discouraged sey County Jail, with the botched execu- conscription. He sought relief under the tion of William Williams and the St. Paul Fourteenth Amendment, but the Minneso- Pioneer Press’ criminal prosecution for Because the St. Paul Pioneer Press had ta Supreme Court rejected the attempt, writing about Williams’ death. gone beyond what was permitted, the holding in State v. Holm, 139 Minn. 267, newspaper was indicted for violating the 166 N.W. 181 (1918), that the Recon- Midnight Assassination Law, the consti- Williams, 28, was convicted of a most struction Amendment did not prevent a tutionality of which reached the Minneso- state from punishing speech “inimical to scandalous and salacious crime. On April ta Supreme Court on a certified question. 12, 1905, he entered the St. Paul home of the public welfare.” The court’s cited 14-year-old John Keller, tracked the boy authority included State v. Pioneer Press. down in his bed, and shot him execution- At the time, federal constitutional law style in the head. Williams killed the was irrelevant to the question of whether A decade later, with memories of the war boy’s mother too. a state’s speech-restrictive law was un- fading and graft and gambling proliferat- constitutional. The First Amendment ing on the streets of Minneapolis, the applied only to federal laws. The idea that The motive for the double murder was the opinions in Holm and Pioneer Press pro- the Fourteenth Amendment prohibited vided the Minnesota Supreme Court with Keller family’s refusal to permit John to state and local governments from re- associate with Williams, who, in the what it needed to help shut down the straining the “liberty” of speech would Saturday Press. words of the opinion by Minnesota Chief not come for another 18 years in Gitlow Justice Charles M. Start that affirmed the v. , 268 U.S. 652 (1925), where conviction, had developed a “strong and the Supreme Court scrutinized but ulti- Its publishers, muckrakers Jay Near and strange attachment” to the boy. mately affirmed socialist Benjamin Git- Howard Guilford, pulled no punches with low’s prosecution under New York’s their articles that linked the Minneapolis The means of and motive for Williams’ Criminal Anarchy Law for publishing his police chief to gamblers, spewed hate of crime outraged St. Paul, where his trip to “Left Wing Manifesto” during the Red Jewish community leaders, and targeted the gallows was eagerly anticipated. But Scare. Hennepin County Attorney Floyd B. Ol- his execution on February 13, 1906 ended son. It was Olson, destined to become up being as grisly as the murders them- Minnesota’s 22nd governor, who sought The only constitution at issue in State v. to enjoin the Saturday Press under the selves because the Ramsey County Sher- Pioneer Press, 100 Minn. 173, 110 N.W. iff used too much rope. Public Nuisance Law of 1925, which 867 (1907), was the Minnesota Constitu- stated that anyone who published, circu- tion. Article 1, Section 3 read then as it lated, or possessed “a malicious, scandal- St. Paul’s newspapers reported specific does today: “The liberty of the press shall ous and defamatory newspaper” was details about what went awry—how forever remain inviolate, and all persons “guilty of a nuisance.” “with a snap the body hung suspended,” may freely speak, write and publish their how Williams’ feet touched the ground sentiments on all subjects, being responsi- and his neck stretched four and half inch- ble for the abuse of such right.” (Continued on page 4) es, how the “minutes dragged,” how it

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Major Minnesota Decisions– Near v. Committee Activities Minnesota

(Continued from page 3) The Society has several active Committees. If you are not now engaged with one of them, please consider joining any of the following: The Minnesota Supreme Court affirmed Olson’s effort in State v. Guilford, 174 Minn. Preservation Committee 457, 219 N.W. 770 (1928). As Chief Justice (Contact Gary Debele at [email protected]) Samuel B. Wilson explained, under the con- trolling precedent of Holm and Pioneer Press, The mission of the Preservation Committee of the MSCHS is to oversee the the constitution did not protect “malice, scan- preservation, organization and dissemination of important history, documents, and dal, and defamation” and there was “no con- memorabilia of the Minnesota Supreme Court, and by extension, the judicial stitutional right to publish a fact merely be- branch of the state of Minnesota. In the first few years, the Committee’s primary cause it is true.” task has been to reach out to current justices to advise them of the Committee’s work and its interest in their documents and memorabilia, and to retired justices in order to assist in organizing their papers and artifacts and making sure these im- With the opinion in Guilford, publication of portant items get to a proper repository for preservation and future access. This the Saturday Press was enjoined. But the work includes facilitating contact between the retired justice and the Minnesota injunction was not permanent, and when Ol- Historical Society to preserve and catalogue important documents and memorabil- son sought to shut down the Saturday Press ia from the retiring justice’s career. The Committee also facilitates the prepara- for good, word of the effort reached the upper tion of judicial career books which for many years have been prepared for each floors of the Tribune Tower in Chicago, retiring justice by the staff at the Minnesota State Law Library. Finally, the Com- where Chicago Tribune publisher “Colonel” mittee plans to undertake oral interviews of each retired justice, to be recorded and Robert R. McCormick feared the Minnesota transcribed and stored with the Minnesota Historical Society and the Minnesota case could eventually hurt his bottom line. State Law Library. The Committee is also beginning to put together a plan for preserving the history of the Minnesota Court of Appeals. The Committee is al- As explained in the 1981 book Minnesota ways looking for additional volunteer members to work on this active, dynamic Rag, a fascinating tale about Near v. Minneso- Committee. ta, former CBS News President Fred Friendly Events Committee explains how McCormick retained noted Chi- (Contact Jill Halbrooks at [email protected]) cago attorney Weymouth Kirkland, who tried to make a federal case out of the Minnesota The Events Committee is responsible for planning and executing the annual meet- dispute by citing the Fourteenth Amendment. ing of the MSCHS, Justice Jeopardy, and periodic reunions of the law clerks from the Minnesota Supreme Court and Court of Appeals as well as other less regularly The Minnesota Supreme Court rejected the scheduled activities with the goal of attracting new members. In 2016, it is antici- Chicago interlopers’ effort. In a terse, four- pated that Justice Jeopardy will take place in October at a location to be an- paragraph opinion, Chief Justice Wilson wrote nounced. The annual meeting is scheduled on Thursday, November 3 at the Min- that the Fourteenth Amendment simply did neapolis Club. We stagger the law clerk reunions. A reunion for the Minnesota not prohibit Minnesota from requiring news- Court of Appeals occurred in 2015; a reunion for the Minnesota Supreme Court paper publishers to operate their businesses will be scheduled for the summer of 2017. “in harmony with the public welfare.” The Education Committee short opinion, coupled with the United States (Contact Anna Nygren Horning at [email protected]) Supreme Court’s opinion in Gitlow, were all that was needed for the Chicagoans to win a The Education Committee works to assist members of the public—particularly trip to Washington. teachers and students—in gaining a better understanding of the judiciary and his- tory of Minnesota’s laws and courts. The Committee sponsors a yearly essay con- By the time certiorari was granted, Guilford test which asks high school juniors and seniors to answer certain questions about had sold his interest in the Saturday Press to how various areas of law may impact their lives. Committee members also serve Near, who became the sole captioned petition- as topical prize judges at Minnesota History Day where they award prizes to stu- er and appellant. And on June 1, 1931, he dents whose work best analyzes the history of Minnesota’s laws and courts. Addi- won. In Near v. Minnesota, the United States tional past projects of the Education Committee include civic education lesson Supreme Court held for the first time that a plans for use by teachers. state’s prior restraint law was “an infringe- ment of the liberty of the press guaranteed by Membership Committee the Fourteenth Amendment,” reversing the (Contact Christine Rain at [email protected]) Minnesota Supreme Court but affirming Min- The Membership Committee is working on ways in introduce the Society to a nesota’s name in a landmark legal opinion. broad audience and increase membership. The Committee has held information events for former judicial clerks and works with law school chapters of the Socie- ty. Newsletter Committee (Contact Sam Hanson at [email protected]) The Newsletter Committee is gathering stories and photos to be included in two issues each year, in July and December.

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Court Administration: Profiling Grace Kaercher Davis* By: Steven Aggergaard

Newspaper clippings provide hints that The 1938 election again gave the Republi- Grace Kaercher had an adventurous side. In cans control over all the statewide offices, 1921, the Independent reported that she led by Governor and Lieu- accompanied the pilot of an airplane that tenant Governor C. Elmer Anderson. The had just been repaired after a mishap with a party kept control of the executive branch zephyr, with Kaercher describing what she despite the merger of the Farmer-Labor and had seen: “Big Stone Lake playing tag with Democratic Parties in 1944. Kaercher Da- the heavens and the sky became green.” vis won election after election.

Her father, Aaron, died suddenly on Febru- In 1954, her retirement became mandatory ary 6, 1922 while at work. Just seven pursuant to Minn. Stat. § 490.025, subd. 8 weeks later, Big Stone County Republicans (1953), which required the Clerk to retire rallied around Grace Kaercher and the state upon reaching the age of 65 or serving 25 Republican Party awarded her the endorse- years in the position. Kaercher Davis had ment for the Minnesota Supreme Court done both. In an Order dated December 7, Clerk position. 1954, C. Elmer Anderson, then , designated December 31, Kaercher was no shoo-in. As the Independ- 1954 as the date of Kaercher Davis’ retire- ent explained at the time: “The contest for ment. this office was the only exciting and hard- fought one of the convention, all other Grace Kaercher Davis died in 1965. She is contests being very much one-sided and buried among several family members at without much vigor.” Mound Cemetery in Ortonville.

Until 1956, Minnesota voters selected the She prevailed in the general election, tak- Clerk of the Minnesota Supreme Court on ing 41% of the vote, defeating Farmer- a partisan ballot. For 28 years their choice Labor candidate Harold T. Van Lear and was Grace Kaercher Davis, who was the Democrat Frank Kelb, and giving the Re- first woman in the country elected to such publicans control over all the a position, and the first woman in Minne- statewide offices in Minnesota. sota elected to a statewide office. Kaercher's election was a turning One of 10 children, Grace Kaercher was point both for Minnesota women born on June 17, 1887 in Ortonville, in politics and the state’s political Minnesota. She was exposed to the law parties. As Millard L. Gieske ex- and lawyers early on. Her father, Aaron plained in his 1979 book, Minne- Kaercher, served as Big Stone County sota Farmer-laborism, The Third- Attorney for eight years and upon his party Alternative: “The election of death was lauded by the Minnesota State 1922 firmly established a three- Bar Association for “assisting the unfor- party state system in Minnesota, tunate where he seldom sought or ob- one which survived for two dec- tained remuneration.” ades. … The competitive perfor- mance of four women candi- Attorney Kaercher also spoke against dates—a Democrat, a Republican, World War I, in a way that resulted in his and two Farmer-Laborites— prosecution under a state law that criminal- likewise implied another im- ized speech that discouraged enlistment. portant change in state politics Kaercher challenged the indictment, but in was under way.” 1918, just four years before his daughter took on the Clerk’s role, the Minnesota In 1927, she married Edward A. Supreme Court rejected the appeal. Davis, an insurance executive from Minneapolis. In 1934, she In 1920, the right of women to vote was lost her seat to Farmer-Laborite finally affirmed, and Grace Kaercher be- Russell O. Gunderson, who during came involved not only in politics but in his tenure as Clerk wrote a book, business, journalism, and her community. History of the Minnesota Supreme She chaired the Women’s Republican Court. Four years later, with Committee of Big Stone County, was sec- Gunderson not on the ballot, retary-treasurer of the Big Stone County Kaercher Davis won back her seat, Loan Association, and was associate editor taking a decisive 47% of the vote of the Ortonville Independent newspaper. in another three-party race.

Trivia Answers

Minnesota Supreme Court 1.a. Answer: left the court in 1946 to become the Republi- Historical Society can nominee for Governor after then Republican Governor Edward Thye announced his decision to run for . Youngdahl became Minnesota’s 27th Gover- nor, but then resigned in 1951 to accept appointment from Democratic President Harry P.O. Box 25 Truman to the federal bench in the District of Columbia, a move engineered by Sen. Chisago City, MN 55013-0025 Hubert Humphrey to remove Youngdahl as a political rival. b. Justice Lee Loevinger left the court for Washington, D.C. in 1961 to become Assistant Attorney General in charge of the antitrust division, and later Commissioner of Email: [email protected] the Federal Communications Commission. c. Justice Harry MacLaughlin left the Supreme Court in 1977 to join the Unit- ed States District Court in Minnesota, appointed by President Jimmy Carter. Justice MacLaughlin was a good friend and former law partner of Vice President Walter Mon- Board of Directors dale and practiced law for a time with Earl Larson, before he became a federal judge; Lee Loevinger, before he joined the Minnesota Supreme Court; , before 2016 Officers he became Governor of Minnesota and later United States Secretary of Agriculture; and Donald Fraser, who later was elected to Congress and as Mayor of Minneapolis. Of Justice Paul H. Anderson (Ret.), course, the question only asked for “deceased” Justices and therefore did not include Chair former Justices Joan Erickson and Mimi Wright. Justice G. , Vice Chair 2. Answer: A good second best answer could have been Justice William Chris- Annamarie Daley, Secretary tensen, who served for 10 months to complete the term of Justice Luther Youngdahl, Kevin Curry, Treasurer who resigned to run for governor. But the best answer is Justice Maynard Persig, a long Robin Wolpert, Past-Chair -time professor at the University of Minnesota Law School and later William Mitchell College of Law, who served for only three months to fill out the remaining term of Jus- 2016 Board Members tice Royal A. Stone, who died in office. Justice Persig agreed to take the interim posi- tion, but made it clear he would not seek another term. Tony Atwal 3. Answer: Justice Andrew D. Holt served for 30 years, from 1912 to 1942. Rebecca Baertsch Justice Holt was re-elected five times and was 87 years old at the time of his retirement. Judge Timothy J. Baland (Ret.) Upon retirement as a Justice, he was appointed a Commissioner of the Courts for four Robin Benson years. Thomas Boyd Judge Diane B. Bratvold Others who served over 20 years were Justices John Berry (23), Stephen F. Buterin (22), Thomas Gallagher (22), and James Otis (21). Carol Chomsky 4. Answer: Perhaps the best known was Justice , who served as Gary Debele Associate Justice from 1963 to 1970, resigned to reenter law practice, and then returned Sue Dostal (Ret.) to service as Chief Justice from 1973 to 1981. Lesser known was Justice Thomas Judge Jill Flaskamp Halbrooks Striessguth, who was called out of private practice twice to complete partial terms. In William M. Hart 1942, he was appointed by Governor Harold Stassen to complete the term of Justice David F. Herr , and in 1944, he was appointed by Governor Edward Thye to complete the Anna Horning Nygren remaining term of Justice . Bruce Jones Christine R.M. Kain Chief Justice Referral for New Members (Ex Officio Member) Patrick J. Kelly Peter Knapp Please forward this to any colleagues who are not members, with the invitation to Judge Harriet Lansing (Ret.) join at one of the following levels: Cathryn Middlebrook Judith L. Oakes Attorney in Private Practice, 6 years or longer — $50.00 Judge Tammy Pust Allen I. Saeks Attorney in Private Practice, first 5 years — $25.00 Amie Penny Sayler Faculty and Teachers — $25.00 Judge Martha M. Simonett General Public — $50.00 James S. Simonson Judicial Clerks — Free William R. Stoeri Justice David R. Stras Public Sector Attorneys and Related Personnel — $25.00 Esther M. Tomljanovich (Ret.) Kenneth R. White Nancy Zalusky Berg * Photographs were obtained from and are reproduced with permission of the Minnesota Historical Society. Page 6