4 Mass. App. Ct. 875 (1976)

Special Sitting.
A special sitting of the Appeals Court was held at Boston on March 11, 1976, on the occasion of the retirement of the Honorable David A. Rose as an Associate Justice of the Appeals Court.

Present: Chief Justice Hale and Justices Rose, Keville, Goodman, Grant, and Armstrong.

The Chief Justice said:

Good morning. Today's session of the court is a special one. This is the first time the full bench of the Appeals Court has sat together - and, sadly, because the Senior Associate Justice of this court must retire shortly, it is the last time the six of us will be able to sit as we are today.

We are all here to express our appreciation and thanks to our Senior Associate Justice, David Rose, whose services to the courts of this Commonwealth has spanned three benches and four decades.

I was in law school when Justice Rose was first appointed a special justice of the Municipal Court of Dorchester. The year was 1936. Justice Rose, barely thirty, was one of the youngest persons ever to have been appointed a judge in Massachusetts. He served the Municipal Court well for more than two decades.

On November 1, 1960, he was appointed to the Superior Court. As a trial lawyer, I soon came to share the views of the trial bar that he was not only an able judge, but a fair and wise one. His dedication to the law and his commitment to the bench were apparent. Those qualities were exemplified by the fact that he became the Chairman of the Superior Court Judicial Education Committee, a post which we all recognize today to be a very important one.

It was my further privilege and pleasure to have served with him as a colleague on the Superior Court for five-and a-half years -- from the time of my appointment to the Superior Court early in 1967 until we were both appointed to this Court in 1972. Through our association there, I learned more of his approach to the law and his judicial philosophy. It was easy for me to see why he enjoyed such a high reputation among the bar and within the judiciary. It was well deserved.

In 1972 the Appeals Court came into existence, and Justice Rose was appointed its Senior Associate Justice. By statute he has served as the presiding Justice on the panels which I have not chaired, and he has served as Chief Justice in my absence. He has written more than one hundred and forty opinions covering virtually every area of the law.

Although the association of justices on the Superior Court is close, it doesn't compare with the special closeness shared by the Justices of this Court. The process of sitting together in various panels of three, hearing cases, discussing cases, writing drafts of opinions and discussing those drafts among ourselves necessarily makes our working relationship a close one. The nature of this appellate work, coupled with the fact that we six are the first Justices of a new court, has helped foster a special camaraderie among us.

It's inevitable that differences of opinion will sometimes result when six legal minds weigh a legal problem. But I'm happy to say that our differences have always been professional, never personal. And I might add that, on several occasions, Judge Rose's wit has helped ease the small tensions that occasionally arise.

I wanted to keep these remarks brief. I haven't mentioned the host of judicial, civic and religious organizations of which he has been a part. But I do want to say, "David, we're going to miss you," and though he leaves the bench next week after the longest judicial career of all currently sitting judges, he'll always be one of us.

At this point Chief Justice Hale called upon Mr. Edward J. Barshak, President of the Boston Bar Association, Mr. Paul R. Sugarman, President-Elect of the Massachusetts Bar Association and Chief Justice Walter H. McLaughlin of the Superior Court. Each of them in turn responded with appropriate remarks.

Justice Rose said:

Mr. Chief Justice Hale, Mr. Chief Justice McLaughlin, my distinguished colleagues, my former colleagues of the Superior Court, members of the Bench and Bar, and my friends:

This is the inevitable moment which no amount of resistance can stay, delay or postpone. You cannot bring down the curtain on a crucial part of your life -- one of forty years' duration, and one which becomes interwoven into the fabric of your existence, without evoking a deep-rooted emotional reaction.

There have been few occasions which by their nature have made me almost inarticulate. Yet today I find myself all but muted, if not frustrated, of expression by ambivalent feelings.

That is why in the early hours of this morning, I rose from a disturbed sleep and decided to pen a few thoughts lest the emotion of this occasion cloud their presentation or that some be omitted inadvertently.

Others may welcome the surcease from labor which generally follows retirement. I do not and I shall not as shortly I begin a new career.

Years of activity in and affiliation with the Judiciary may prove a fatiguing experience to others, but to me the challenge of each day brought reinvigoration and new strength.

There are many who have been very flattering in expressing surprise that I have become qualified by age for retirement. I have no doubt that there may be some who, while unexpressed, have felt it should have come earlier.

When I was appointed to my initial judicial post, the newspapers reported that I was the youngest appointment to the Bench.

Somehow I sense that this earlier precociousness -- if it was that -- has been revived, for I feel -- at least to myself, that I shall be the youngest retiree in spirit.

This is an appropriate time to express my appreciation for the positive impact which events and people have had upon me.

I am grateful to my colleagues for their felicitous companionship, for their collective critical eye, for their courageous resistance to some of my proposed dispositions of cases, for the constructive nature of their dissent expressed at times in varying degrees of heat, but above all for their ready availability for advice, assistance and guidance on many difficult and perplexing problems.

I am also grateful to Judge Grant for sharing with me his reservoir of punctuation marks, particularly his wealth of commas.

I am especially grateful to Chief Justice Hale, an excellent craftsman of leadership and administration. While the responsibility of administration devolved solely upon him by the terms of the Act which established this court, he constantly sought our advice and judgment, so that there was a feeling of sharing, participation and creativity in building this newest institution of justice in the Commonwealth -- the Appeals Court.

I shall always remember how he delicately harmonized our differences when they arose and how he presided over our deliberations with artistic skill and impartiality.

I am grateful to the entire staff of the court, the law clerks, the secretaries, the court officers and the personnel of the Clerk's Office, -- all of whom have created an atmosphere of effective production under difficult pressures of burgeoning court business.

I am grateful to Chief Justice McLaughlin for his presence here today, and for the thoughtfulness of his remarks. When I served under him in the Superior Court I felt very proud of the confidence that he indicated by entrusting me with many responsibilities. I shall always look back with a deep sense of gratitude for the companionship that I shared with him, of my former colleagues of that court, whom I see present here today, and who honor me with their presence this morning.

I am grateful to Edward Barshak, the President of the Boston Bar Association, and to Paul Sugarman, President-Elect of the Massachusetts Bar Association, for their presence and their gracious remarks. Both are distinguished members of the Bar and long-time friends. I hope that their friendship and the fact that they made these observations and statements not under oath in this courtroom will not impugn the credibility of their observations.

The fact that time and attrition have given me the unique identification of possessing the most longevity of any judge presently sitting in Massachusetts, while not an earned distinction, is, nevertheless, welcomed by me.

But one opportunity which I know has been of estimable help is that I have served the Judiciary on the District Court, Superior Court and Appellate level, a circumstance that is shared only with the late Mr. Justice Lummus of the Supreme Judicial Court.

As I look around this courtroom I see a kaleidoscopic view of my life. There are present many who have been witness to some of the milestones leading to this crucial one today. I am presumptuous enough to interpret their and your presence as an expression of regard -- and in many instances of affection.

The wrench that is mine created by this mandated separation from work which I have enjoyed for so long is assuaged in considerable measure by the many and diverse memories that I shall take with me. Highlighted in this catalogue of memories will be the presence of all of you in a never to be forgotten tribute at a moment of incomparable significance to me, for all of which I am deeply grateful.