By Colleen Ball
Lavinia Goodell, Wisconsin’s first woman lawyer, is mostly known for her epic battle with Chief Justice Edward Ryan. In 1875, he denied her admission to practice before the Wisconsin Supreme Court solely because of her gender. According to Ryan:
The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it.
Chief Justice Ryan crossed swords with the wrong woman. Goodell assailed his decision in the national press. She drafted a bill to prohibit gender discrimination in the practice of law, persuaded male legislators to pass it, and a male governor to sign it. Her triumph opened the Wisconsin bar to women, but her many other impressive feats are scarcely known.
She was born to abolitionist parents who were so passionate about equal rights that their dishes were inscribed with the Declaration of Independence.
Goodell later recalled:
When I sat down to dinner every day I read my plate, till I had learned it all by heart—learned it so well I never forgot it. And thus literally with my child’s bowl of bread and milk I drank in also the question of equal rights . . .
As a young woman, Goodell promoted equal rights by helping her father publish The Principia, an anti-slavery newspaper in New York. When he was away on business, she was the managing editor. After the North won the Civil War, she landed a job at Harper’s Bazar, America’s first fashion magazine, where she honed her skills as a writer and editor, rubbed shoulders with progressive New Yorkers, and came to regard herself as a professional woman, rather than a potential wife and mother.
In 1871, her parents, then in their 70s, moved to Janesville, Wisconsin. Goodell followed to care for them. She was dismayed to find that, unlike her New York friends, Janesville women had “ballot phobia.” They refused to support the women’s suffrage movement for fear of appearing “unwomanly.” To her they seemed “content with their degradation.”
Goodell would not stand idly by. While managing her parents’ health and home, she championed equal rights for women. She started writing for the Woman’s Journal, the leading suffragist periodical published by Lucy Stone and her husband, Henry Browne Blackwell. She published dozens of articles arguing that woman should have the right to vote, equality in marriage, the right to own property, the right to enter professions, and so on.
She also decided to become an attorney. She studied law on her own while informally apprenticing for the firm of Pliny & Norcross and pushed to be admitted to the bar. In those days, bar exams were conducted orally in a courtroom by a judge and senior lawyers. Rock County Circuit Court Judge Harmon Conger knew that no woman had been admitted to the bar in Wisconsin. Lavinia’s admission would be controversial, so he kept postponing her exam until he no longer could.
On June 17, 1874, Judge Conger had to examine a young man who wanted to practice law. Late in the day he “suddenly and unexpectedly” summoned Goodell to be examined at the same time. The questioning was “awful severe,” but Goodell not only passed, she upstaged the male candidate. Her admission as the first woman lawyer in Wisconsin created a sensation in Janesville and the national press. She immediately ordered business cards.
1n 1874, only a handful of women in the United States were lawyers. Several took the bar exam just to prove that they could pass it, but they did not practice law. Not Goodell. She used her law license to advance her causes in court and lobby for changes in the law.
One of those causes was temperance, because drunk men abused, neglected, and impoverished their wives and children. Shortly after passing the bar, Goodell learned that Fort Atkinson saloon keepers were illegally selling liquor on Sundays and the male district attorney refused to prosecute them. Local temperance leaders thought the new lady lawyer might be up to the task. Indeed, she was. On August 4, 1874, Wisconsin’s first woman lawyer won her first two court trials back-to-back.
The saloonkeepers immediately appealed to the Jefferson County Circuit Court where they would be tried by a jury of their peers--i.e., men. (Women couldn’t yet serve on juries). Big mistake. Goodell was smart and on a mission. She prepared long and hard. On September 17, 1874, she prevailed in her first jury trial. This marked the first time any woman tried a case to a jury in Wisconsin and even in the United States.
Goodell proceeded to try many cases. Among the most noteworthy was Tyler v. Burrington, where she defended a middle-aged widow on a claim against her deceased husband’s estate. When the case reached the Wisconsin Supreme Court, Chief Justice Ryan issued his famously misogynous opinion (noted above) denying her admission to practice due to her gender, which only motivated her to lobby for a change in the law.
Meanwhile, she kept litigating in the circuit courts. Women who had grounds for divorce couldn’t find male lawyers to represent them. Goodell took their cases. She also developed a knack for criminal defense work.
While visiting a client in jail she felt another calling. The awful conditions were only breeding more vice. She established a school and prayer services in the Rock County Jail with the goal of rehabilitating inmates so that they could be productive members of society upon their release. She toured what is now Waupun Correctional Institution and proposed penal reform legislation to the Wisconsin legislature.
Goodell smashed so many barriers. She became Wisconsin’s first female notary, which gave her and eventually other women a respectable source of income. She was the first woman in the United States to run for city attorney. She received 60 (male) votes. After she successfully lobbied the legislature and governor to allow women to practice law, she was finally admitted to practice before the Wisconsin Supreme Court. Then she became the first woman to win a case there. She also co-founded Wisconsin’s first female law firm—Goodell & King.
Along the way, Goodell circulated Elizabeth Cady Stanton’s suffrage petitions around Janesville, co-founded the Janesville women’s temperance association, served as vice president of the Society for the Advancement of Women, and vice president of the American Women’s Association. She was Wisconsin’s signatory to the 1878 Susan B. Anthony Amendment, which the U.S. Congress ultimately passed in 1920 as the 19th Amendment granting women the right to vote.
The list goes on even though Goodell practiced law just six years and spent the last three of them battling ovarian cancer, which took her life at age 41. She did not smash barriers for the glory of it. She did it because she believed that women had as much right to social, civil, and political equality as anyone else. She shrewdly persuaded influential male lawyers, judges, and politicians to her point of view, which then opened doors for women. Yes, she blazed trails. Just as important, she inspired and actively helped others to venture onto them.
Learn more about Lavinia Goodell by visiting www.laviniagoodell.com or taking this walking tour of her Janesville stomping grounds.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions.
The case: Fond du Lac County v. S.N.W.
Majority: Per curiam (1 paragraph)
Dissent: Justice Ann Walsh Bradley (5 pages)
The Wisconsin Supreme Court dismissed the case, but not until after the time, effort and expense of briefing and oral argument. The court determined, without explanation, that it should not have granted permission for review in the first place.
Fond du Lac County Circuit Court Judge Dale English ordered S.N.W. involuntarily committed and subject to involuntary medication and treatment, even though S.N.W. and his counsel had not received all psychiatric or medical reports at least 48 hours before S.N.W.’s final hearing, in violation of a state statutory requirement. A doctor’s report was submitted to S.N.W.’s attorney after the 48-hour deadline had passed yet before the final hearing took place. Over S.N.W.’s objection, Judge English admitted the report into evidence and allowed the doctor to testify at the final hearing. He then concluded that the County proved that S.N.W. was mentally ill, a proper subject for treatment, and dangerous.
S.N.W. appealed, arguing that because the doctor’s report was late, the circuit court lacked competency to proceed with the final hearing and the case had to be dismissed. S.N.W. argued in the alternative that if the court retained jurisdiction over the case, the report and doctor’s testimony should have been excluded from evidence.
The Wisconsin Court of Appeals, District II, affirmed. Presiding Judge Paul F. Reilly held that the 48-hour requirement did not affect the court’s competency to hold the final hearing. Further, he said, the doctor’s failure to submit the report in time “did not affect S.N.W.’s substantial rights” and the circuit court did not err in admitting the doctor’s report or testimony. S.N.W., said Reilly, “has not identified any prejudice that S.N.W. suffered as a result of having twenty-four hours as opposed to forty-eight hours” to review the doctor’s report.
S.N.W. petitioned the Wisconsin Supreme Court for review, and the court granted permission to proceed and scheduled briefing. The issues raised on review included (1) whether the appeal was moot, (2) whether the circuit court lacked competency to proceed with the final hearing due to violation of the 48-hour rule, (3) if the court retained competency to hear the matter, whether the circuit erred in admitting the report and testimony, and (4) whether the evidence presented at the final hearing was sufficient to prove S.N.W. dangerous.
After reviewing the record and the briefs of both parties, and after hearing oral arguments, we conclude that this matter should be dismissed as improvidently granted.
I write separately because I believe that this court should explain to the litigants and public the reason for the dismissal. The litigants, after all, have expended substantial effort and resources arguing the case before us.
Additionally, I write because this case implicates substantial rights and presents important questions of mental health commitment law. We granted review in order to address these novel issues of statewide public concern. And now, without explanation, we dispose of the case in a two-sentence per curiam decision, dismissing the case as improvidently granted.
[T]his dearth of explanation has not always been the norm. For example, in Michael J. Waldvogel Trucking, LLC v. LIRC, the court explained that dismissal as improvidently granted was inappropriate because a change in the law rendered the issue in question unlikely to recur and a decision in the case “would not develop or clarify the law.”
Similarly, in Smith v. Anderson, the court examined the issues in the case and ultimately explained that the dismissal as improvidently granted was based on the presence of outstanding coverage questions “for which no argument or briefing was provided” and on the premise that deciding the issues before the court only would “cause confusion and provide no answer to the parties on how they are to proceed.” Indeed, in Smith, two separate writings provided further nuanced discussion.
In a footnote, Walsh Bradley cited additional cases in which the court explained why it dismissed review as improvidently granted.
The result of the court’s inconsistent practice is a lack of guidance for potential litigants and the public, as well as an effective negation of the numerous hours of work and sums of money spent seeking a decision on the merits. Acknowledging the strong public policy rationale behind providing reasons for a dismissal as improvidently granted, the court’s general practice should be to provide an explanation for such a dismissal, and as such it should have provided an explanation in this case. It is the least we can do for parties who have expended time, energy, and money seeking a resolution from this court.
"The result of the court’s inconsistent practice is a lack of guidance for potential litigants and the public, as well as an effective negation of the numerous hours of work and sums of money spent seeking a decision on the merits." – Justice Ann Walsh Bradley
I not only take issue with the majority’s lack of explanation of its decision, but I also disagree with the decision itself. In my view, we should decide this case on the merits and not dismiss it as improvidently granted.
Mootness provides no obstacle to our review. Although S.N.W. has passed away, we knew that when we granted the petition for review in this case. In any event, our decision in Langlade County v. D.J.W. controls. There, citing State v. McDonald, which determined in the criminal context that the right to bring an appeal survives the defendant’s death, we concluded that the same rule applied to a ch. 51 involuntary commitment proceeding “[g]iven the significant liberty interests at stake.” We should simply apply this rule here.
Further, even if the case is moot, exceptions to mootness apply that allow for an otherwise moot case to be decided. Because the issues here are of great public importance and are capable of repetition, yet evade review, mootness exceptions are met. This case should proceed to a full written opinion.
Issues of great public importance substantially affecting the rights of those subject to mental health commitments should not be curtly discarded by the court with no explanation, Rather, these important issues in mental health commitment law, if decided, will serve to develop the law in a meaningful way.
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