45 Mass. App. Ct. 1127 (1998)


A special sitting of the Appeals Court was held at Boston on November 18, 1998, at which a Memorial to the late Chief Justice Allan M. Hale was presented.

Present: Chief Justice Warner; Justices Armstrong, Brown, Perretta, Kass, Jacobs, Porada, Greenberg, Laurence, Flannery, Lenk, Spina, Beck, and Rapoza; Retired Supreme Judicial Court Justice Benjamin Kaplan; and Retired Appeals Court Justices Gerald Gillerman, Kent B. Smith, and Raya S. Dreben.

Scott Harshbarger, Attorney General, addressed the court as follows:

May it please the court: As the Attorney General of Massachusetts, it is my privilege and honor to present, on behalf of the bar of this Commonwealth, a memorial and tribute to the late Chief Justice Allan M. Hale.

Allan Murray Hale was born in Plymouth on February 21, 1914, the first child of Elmer and Annie Laurie Hale; two brothers and two sisters eventually joined him. His father was a freight conductor for the New Haven & Hartford Railroad. When Allan was very young his family moved to Middleborough, where he continued to reside for almost his entire life. His interest in the law was kindled while he attended Middleborough High School; many days after school he sat in on trials at the Fourth District Court in Plymouth County.

After graduating from high school in 1932, he found work first in the packing room of the Leonard & Barrows Shoe Company in Middleborough, and later as a shipper for the Alberts Shoe Company. But, within a few years, he began to realize his ambition of becoming a lawyer. He attended Northeastern University School of Law in the evenings, continuing to work days as a clerk for the New Haven Railroad and for the Curtis Publishing Company in Cambridge.

Allan Hale graduated from Northeastern in 1939, and was admitted to the bar in 1940. But it was while he was a law student that the most important event in his life occurred — he met Barbara Moore Hunt, a native of Cataumet on Cape Cod. They were married on June 7, 1941.

By that time Allan Hale had set up his own law office on North Main Street in Middleborough, not far from the courthouse. However, the United States was soon at war, and the young lawyer joined the Coast Guard as a lieutenant in 1942, serving until 1946. After that he returned full-time to law, and before long had an active practice in both civil and criminal matters. He was elected to the town finance committee and was involved in local politics. From 1951 to 1954 he was an assistant district attorney in Plymouth County. During that time he also became an expert on municipal law, serving as town counsel for Middleborough and Lakeville for twenty years; he also acted as counsel for the towns of Bourne and Freetown, and for several regional water and school districts on Cape Cod. In 1965 he was elected vice president of the Massachusetts City Solicitors and Town Counsel Association. Previously he had served as secretary and president of the Plymouth County Bar Association.

In 1967 Governor John Volpe appointed Allan Hale a justice of the Superior Court. One of his first assignments on that court was an unusual one -- he was designated to conduct sessions at Bridgewater State Hospital for persons who had been committed there, not as sexually dangerous persons, but rather for observation. This was where I had my chance to meet Judge Hale for the first time, as a young law student in Harvard's public defender program. As Judge Hale later told the Boston Globe, "My job was to review the cases of hundreds of persons who had been held at the hospital longer than the maximum sentence for the criminal charge against them. Many of them had never been brought to trial, just sent to the hospital for 30 days and forgotten." As a result many of the inmates were released from the hospital.

Five years later Judge Hale received a monumental judicial assignment -- to get a brand new court up and running. In 1972, Governor Frank Sargent appointed him Chief Justice of the newly created Appeals Court. At first, Judge Hale had some doubts. To use his own words, "I wasn't too darn anxious to come here. I liked what I was doing. I enjoyed the experience on the Superior Court, meeting people and lawyers all over the State. I didn't want to leave, but the challenge of setting up an entirely new court was one I could not refuse." Fortunately, Governor Sargent did not have any doubts about his selection. Calling the creation of the Appeals Court "the single most significant step in judicial reform in Massachusetts this century," the Governor went on to speak of Chief Justice Hale and his five associates: "I have sought individuals who have a proven record of outstanding legal accomplishment, wisdom and good judgment. It is my belief that the men we have selected will allow this court to take its rightful place in our judicial system. It is a bench both balanced and responsive. It will, from the outset, be able to shoulder its full share of an appellate overload which for many years has been staggering."

Chief Justice Hale and his five colleagues -- David Rose, Edmund Keville, Reuben Goodman, Donald Grant, and Christopher Armstrong -- took their oaths of office in October 1972. At the time, the Appeals Court had almost nothing -- no offices, no courtroom, no supplies, no law books, and virtually no employees. The new court did have one thing, though: a backlog. That fall the Supreme Judicial Court transferred 169 pending appeals from its docket to the Appeals Court's.

But within a few short weeks the obstacles had been overcome; the Appeals Court "borrowed" a courtroom — this one — from the SJC. It set up offices on the fifteenth floor of the Suffolk County Courthouse, in what had been the jury pool. It found books, typewriters, pencils and paper. And it began on the backlog. The court's first sitting was held on November 13, 1972, almost exactly twenty-six years ago, with Chief Justice Hale chairing the three-judge panel. Chief Justice Hale also saw to it that the new court issued its first decisions before the end of the year. On December 29, 1972, the Appeals Court issued six opinions, one by each of the justices. The first of them, Commonwealth v. Neal Deschamps, was authored by Chief Justice Hale. Appropriately, it is found at volume 1, page 1, of the Massachusetts Appeals Court Reports.

The Deschamps case was the first of almost 900 decisions that Chief Justice Hale would write for the court during the next eleven and one-half years, of which 336 were signed opinions. Within a few years it became obvious that a six-judge court was inadequate to handle the rapidly expanding volume of appeals. The adoption of modern rules of civil and appellate procedure in 1974 made it easier to take an appeal; as a result, between 1974 and 1977 the Appeals Court's annual caseload more than doubled, exceeding 1000 cases for the first time. Help came in 1978 with the arrival of four more justices (including the court's first two women justices, Charlotte Anne Perretta and Raya Dreben) and the authority to use retired appellate judges on judicial recall.

Chief Justice Hale retired in February, 1984, upon reaching the mandatory retirement age of seventy. He was honored a month earlier by the Boston Bar Foundation, which conferred upon him its Distinguished Judicial Service Award. In an editorial salute to Judge Hale, Massachusetts Lawyers Weekly described him as "strict, yet universally regarded as having a true feel for justice . . . a good law man, yet possessed of compassion . . . warm, friendly and affable, yet a stickler for compliance with the rules."

Upon his retirement, he was also honored with two special gifts. One of them is on the west wall of this courtroom, the oil portrait of him by Boston artist Robert Cormier; a full-sized Polaroid copy of it was given by the Plymouth County Bar Association to the Superior Court in Brockton. At the unveiling of the portrait here in 1984, Judge Hale confessed to a rare case of nervousness, and then related how much he had enjoyed sitting for the portrait. During those sittings he discovered that the artist, Mr. Cormier, had also painted the portrait of former Superior Court Judge John V. Sullivan. Before his appointment to the bench, Judge Sullivan had been a lawyer in Middleborough, and, as Judge Hale put it, "fed me the chips from his desk" when Hale was a young lawyer.

The second retirement gift Judge Hale received was even more special -- his wife, Barbara, had arranged for two Cape Cod artisans to create a miniature of this courtroom, complete to such details as the coat racks, floor tiles, portrait and calendar.

After his retirement Judge Hale served as a recall judge with the Appeals Court for a few months, and then as a recall judge in Superior Court for several years. Much of that time he sat in Brockton, closer to his hometown. After all, as Judge Hale often described himself, he was "just a country lawyer at heart." After a long illness, he died in Wareham at the age of eighty-three on November 1, 1997.

Judge Hale enjoyed life beyond his work as a lawyer and judge. He was an avid sailor and pilot. He obtained his private pilot's license in 1955, and continued to fly well into his seventies. He was equally at home on the water, piloting his 27-foot sloop, Altair, all over Buzzards Bay and Vineyard Sound, as well as on several longer cruises. Each summer he took his law clerks sailing on what was billed as the Annual Administrative Law of the Sea Conference. The boat, I might add, was moored in Cataumet, where the Hales had a cottage; the cottage was just a few steps away from Barbara Hale's birthplace.

Above all, Judge Hale was a family man. Allan and Barbara Hale were the parents of three children, all of whom are lawyers: daughter Judith Hale Norris, and sons Douglas and Laurence Hale. And they were the delighted grandparents of six grandchildren.

It is an honor for me, as Attorney General, to be here this morning to take part in this tribute. I have had the privilege over the past many years of working with the outstanding group of jurists that have made up this court. I am extremely grateful that one of my last official duties as Attorney General is to appear before you in tribute to the work of its first Chief Justice, Allan Hale.

On behalf of the bar of the Commonwealth, Mr. Chief Justice, I respectfully move that this Memorial be spread on the records of this court.

George C. Decas, Esquire, addressed the court as follows:

May it please the court:

In 1965, after one year of practice, I was fortunate to become associated with the law office of Allan M. Hale in Middleboro, Massachusetts, next to my hometown of Wareham. Judge Hale was a sole practitioner at the time. His home was directly behind the law office.

His reputation as a skilled and effective attorney was well known and he was widely respected throughout Plymouth and Barnstable Counties and beyond. Many attorneys referred cases to him for trial.

My experience was obviously limited, but I soon realized the extraordinary width and breadth of Judge Hale's knowledge and skills. Incredibly, he had no other associates.

I remember that he worked six days a week. After dinner, he would frequently walk one block to the office for evening appointments. This was necessary, given his heavy trial practice.

It was not as well known that he represented simultaneously, as Town Counsel, at least seven towns. Today an individual lawyer would have difficulty representing one town and maintaining a full and varied practice in many other fields. He served as the Vice—President of the City Solicitors' and Town Counsel Association of Massachusetts. He was offered the presidency, but declined.

As many of you know, he was a humble man. He lived in a small town and was very much at ease in that environment. He did much for the community, but the greatest accomplishment of the Judge and his wife Barbara was the example he set for his children. Judy and the twins, Doug and Larry - all chose their father's profession.

He was an adventurer. Judge Hale was an accomplished pilot and sailor. I was neither. He graciously invited me to fly with him in his plane. I declined, and I am still embarrassed about that.

Judge Hale rarely showed any annoyance, despite his heavy schedule. Occasionally he expressed mild irritation to me when he heard gossiping in the reception room while his work was on hold, but he never reprimanded anyone. He accommodated everyone. His secretary Shirley kept her dog under the desk in the reception room for the entire day, except during lunch. A client once came into the reception room, had an allergic reaction, and left the office.

When we went for coffee at the next door donut shop, he liked to flip a coin to see who would pay. That was fine until one day he asked me to flip the coin and I bungled it. He pretended he didn't notice my lack of such basic skills. Judge Hale came from humble beginnings. His father was a conductor on the railroad. One day we both visited a client of Pilgrim ancestry in Plymouth, whose house overlooked Plymouth Rock. The client opposed the construction of the proposed wax museum. After our visit with the client, Judge Hale remarked that his father and grandfather probably wouldn't have been allowed to come through the front door of this distinguished client in prior years.

Which brings me to the little known subject of Allan Hale the preservationist. In 1956 a fuel company sought to raze the Peter H. Peirce house, built in 1814. This Middleborough mansion had a three-story oval, suspended staircase, which was modeled after the staircase of Peirce's friend, Massachusetts Governor Marcus Morton. Allan Hale and others came to the rescue and contributed the funds to save the building, which still stands. Its most prominent tenant was the Hale law office.

As a member of the Judicial Nominating Council since 1991, my Committee has interviewed hundreds of prospective judges. That experience on the Council reinforces my belief (which is no doubt shared by those gathered here today), that Judge Hale was an extraordinary jurist.

He deserves the titles he has earned: Renaissance man, family man, and distinguished jurist.

Barbara H. Hendrie, Esquire, addressed the court as follows:

Mr. Chief Justice and Associate Justices of the Appeals Court, may it please the court:

I am honored by the opportunity to speak in support of the Attorney General's motion. I speak today not only on my own behalf but also on behalf of all the other men and women who had the privilege of serving as law clerks to Chief Justice Allan M. Hale.

Evidence of Judge Hale's contributions as jurist is replete. One has only to visit a law library in the Commonwealth or to call up digitally the opinions he crafted and those that were handed down by the court he led during his tenure as Chief Justice, to "access a legacy that is visible, tactile and permanent.

But his legacy also endures within those living, breathing embodiments of his influence, his law clerks. It is among this group that Judge Hale's legacy as teacher is revealed and where one discovers a fundamental truth: that although much was taken just over a year ago, much abides.

Our clerkships took place at that moment in each of our lives — the time after the law school classroom and before the actual practice of the law -- when lessons, if not already learned had better be. The time is so embedded in our collective memory that when its lessons are recalled they have the powerful ability to recharge the mind and to stir vivid memories of the man who was our teacher.

My mind is recharged today by lessons that still resonate:

"Say what you mean and mean what you say." "Strive for clarity and precision in your use of language." "Substance is a most powerful style." "Do your hard thinking before you set pen to paper or otherwise give flight to words."