40 Mass. 1151
A special sitting of the Appeals Court was held at Boston on April 22, 1996, at which a Memorial to the late Justice David A. Rose was presented.
Present: Chief Justice Warner; Justices Armstrong, Brown, Perretta, Dreben, Kass, Smith, Jacobs, Porada, Ireland, Greenberg, Laurence, Flannery, and Lenk; and Retired Supreme Judicial Court Justice Benjamin Kaplan and Retired Appeals Court Justice Gerald Gillerman.
L. 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 Justice David A. Rose.
David Rose was born in Boston's West End on March 24, 1906. We think. But we'll get back to that in a moment. He was the second child of Morris and Sarah Rose. He grew up in Roxbury, attending the Christopher Gibson Grammar School and graduating from English High School in 1923. He moved to Dorchester at the age of nineteen and attended Boston University's College of Business Administration. Justice Rose graduated from his beloved Boston University School of Law in 1927. He completed postgraduate law studies at Georgetown University and was admitted to the Mamachusetts Bar in 1928.
Justice Rose married Ruth Goodman on February 12, 1939, in Scranton, Pennsylvania. They had three children: a daughter Rosamond, and two sons, Stanley and Mitchell. In July of 1949, David and Ruth moved to Newton where they lived until moving to Wellesley in October of 1984. Justice Rose was also the proud grandfather of two grandchildren, Stephanie Rose and Jeffrey Rose. When not on the bench or working tirelessly in the community, he enjoyed photography, history, and playing golf.
After being elected to the Massachusetts Legislature in 1935 as a "Roosevelt Democrat," Justice Rose was appointed a Special Justice of the Dorchester District Court in 1936. He was only thirty years old at the time. While sitting as a Special Justice of the Dorchester District Court, Justice Rose maintained a private law practice, as, you will recall, was permitted at that time, in the partnership of Holtz & Rose, with Jackson J. Holtz, a former State Representative and Assistant United States Attorney.
In 1960, he was appointed to the Superior Court, where he served as an Associate Justice for twelve years and where I had the chance to meet him for the first time. When the Appeals Court was created in 1972, he was one of the six original appointees and due to the length of his prior judicial service, he was appointed Senior Associate Justice. He served with great distinction until his retirement in 1976.
On March 20, 1976, a special ceremony was held to honor his retirement with all six original appointees to the Appeals Court sitting. It was the only time that the retirement of an Appeals Court justice was commemorated in this way. Justice Rose actually had to retire four days before his seventieth birthday because the commonwealth's official record mistakenly listed his birthday as March 20th.
At his retirement ceremony, Chief Justice McLaughlin, then, you will recall, the Chief Justice of the Superior Court, praised Justice Rose with the following words:
"If he leaves the court today with no other memory, let it be that he has had the respect of the trial bar . . . because of his integrity, his impartiality, his fairness, his judicial approach to the ever complex problems of life. At his hands no one walked out of his court with injustice."
Justice Rose was not gone from the bench for long, however. During the first two years after his retirement, he was of counsel to the Boston law firm of Barron & Stadfeld. After the then first Court Reform Act of 1978, he was the first retired judge to be recalled to the Appeals Court. His service as a recalled retired justice, from October 1, 1978 until August 31, 1985, was actually longer than his service as an associate justice of the Appeals Court.
During his entire period of service on the Appeals Court, some ten and one-half years, he authored 366 decisions, almost all of which were published as opinions.
Justice Rose was widely recognized and admired for his dedication to the law and his commitment to his duties as a judge. After his appointment to the Superior Court, he was actively involved in judicial education and became Chair of the Superior Court Education Committee. He was also instrumental in getting the Appeals Court up and running. As Chairman (and sole member) of the Library Committee, he saw to it that the court library and the judges' office bookshelves had the volumes that were vitally needed but was careful not to unnecessarily duplicate the resources of the Social Law Library. In addition, he designed the court's of- ficial seal, which is still used today.
During the summers, he was known for bringing in fresh mint from his garden to the courthouse, to have with tea.
Justice Rose wrote the first civil decision issued by the Appeals Court in Kanall v. 318 Lounge, Inc. Justice Rose also wrote several precedent-setting criminal decisions while sitting on the Appeals Court. He began a tradition which many prosecutors still allege is true - that the Appeals Court does uphold civil rights and civil liberties. In Commonwealth v. Murphy, the court overturned a conviction after meticulously examining the evidence and finding it insufficient to warrant a finding of guilt. In this carefully written opinion, Justice Rose articulated a standard for testing the sufficiency of the evidence in a criminal case by elaborating on the Supreme Judicial Court's decision in Commonwealth v. Perry, providing important guidance to prosecutors, defense counsel and his colleagues on the bench.
In Commonwealth v. Brown, recently cited by the Supreme Judicial Court of Massachusetts, Justice Rose authored a decision impacting several important areas of criminal adjudication: the appellate rights of defendants; the impeachment of defense witnesses; and most importantly, the use of preemptory challenges by prosecutors.
During his retirement ceremony, Chief Justice Hale of the Appeals Court praised Justice Rose for the professionalism and legal knowledge he brought to the bench but was quick to acknowledge the lighter side of Justice Rose's personality, noting that when the court was deciding a difficult case "Judge Rose's wit helped ease the small tensions that can occasionally arise."
This was his career as a judge, but his devotion to the law was matched by his life-long commitment to his community, to education, and to civil rights. He was the first Chair of the New England Regional of the Anti-Defamation League of B'nai B'rith, and served that organization in numerous positions over the years: as National Commissioner, Vice Chair of the National Commission, Chair of the National Executive Committee, and then Honorary Chair until his death. He received its first Human Relations Award in 1967, and later received its Distinguished Public Leadership Award.
After so many years of unwavering commitment to freedom, justice, and equal protection, it is only fitting that the Anti-Defamation League recently chose to honor him by establishing the David A. Rose Civil Rights Award. On February 22 of this year, I was honored and humbled to be chosen as the first recipient of that award, and it meant a great deal to me because of my personal association with Justice Rose.
Justice Rose also served as a member of the Attorney General's Committee on Civil Rights and Civil Liberties. During World War II, Justice Rose helped form the Jewish Community Relations Council of Boston and was its second President. He was a long-time member of the American Jewish Committee, which presented him with its Norman S. Rabb Human Relations Award in 1973.
Justice Rose also served as a President of the Law Society of Massachusetts.
He was dedicated to helping troubled youth and was instrumental in creating Jewish Big Brother Association, serving as President several times, and then as Honorary President. Justice Rose also served as a member of the Governor's Commission on Juvenile Delinquency, the Massachusetts Special Recess Commission on Youth Offenders, The Executive Committee of the Massachusetts Conference on Children and Youth, and the White House Mid-Century Conference on Youth - a sense of deja vu for all of us on these topics.
Justice Rose was devoted, as I mentioned, to his alma mater, Boston University, serving as National Chair of the Alumni Association, and teaching trial practice courses at the law school from 1976 until 1988.
In 1975, he earned the Boston University School of Law "Silver Shingle" for distinguished service to the legal profession, and in 1977, was honored by the Alumni Association with its Alumni Achievement Award for "Outstanding Service to Alma Mater."
Justice Rose was also a pioneer at Brandeis University. He was an early President of the Boston Brandeis Club and was one of the first Fellows appointed by the university. In addition, he provided pro bono legal services to the university prior to his appointment to the Superior Court.
He was active in his local community as well, serving as a member of the Executive Committee of the Newton Mental Health Committee, as Vice Chair of the Newton Human Relations Commission, and as a Trustee of Temple Emanuel in Newton. He was always in demand as a speaker because of his articulate presentations, his wit, and his commitment to so many causes - the law, his community, family, young people and, most importantly, equal justice and fairness.
Justice Rose died on April 29, 1995, at the age of 89. He is survived by his wonderful family who appears before you.
At his retirement ceremony in 1976, Justice Rose said that "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." Looking back over his remarkable history, it is clear that this statement exemplified not only his approach to his duties as a judge, but the attitude with which he approached every aspect of his life. It is an honor for me, as Attorney General, to be here this morning to take part in this tribute.
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.
Joel B. Sherman, Esquire, addressed the court as follows:
Chief Justice Warner, Attorney General Harshbarger, Justice Armstrong, Ms. Herlihy, Justices of the Appeals Court, Ruth, family and friends:
As a young lawyer in the mid-1960's, new to the Boston legal community, there were many distinguished senior attorneys and judges to whom I could look for guidance and counsel. However, there were few who were able to reach out and personally touch you in David Rose's special way.
His career represented the classic American dream. He was the son of a tailor from London and a mother from Cardiff, Wales, who came to the West End and eventually migrated to Ward 14 in Dorchester.
As a young boy, David distinguished himself as a student and as a member of the varsity track team at Boston English High. I am told that for many years thereafter, David continued to wear his varsity sweater emblazoned with the "E", with great pride. Like many other young men of his time, David worked his way through Boston University, holding a number of different jobs. He sold encyclopedias and "Sunday's" Candy, worked for the Railroad and cleaned stalls at a summer camp, and was a lecturer and tour guide on a Gray Line sightseeing bus. In later years, he reflected with awe on the somewhat doubtful information he disbursed to a defenseless public as a tour guide. Even with his jobs, David still found time to be a member of B.U.'s National Collegiate Champion Debating Team. Through his perseverance and hard work, he completed college and law school in just four (4) years, graduating in 1927, at the young age of 21.
David began his legal career by working in a small law firm, where he earned the grand total of $5 a week. He soon realized that he needed to augment this income and inaugurated what was to become a lifelong career of public service. Ruth advises me that traditionally, Ward 14 had been a Republican stronghold and that the first time David ran for State representative as a Democrat, he lost. However, by demonstrating the same type of perseverance he had in working his way through B.U., he finally won a seat on the General Court, helping to change the character of Ward 14 for many years to come.
David's legislative career involved fighting for a number of liberal causes, particularly an important amendment to the Commonwealth's Child Labor Laws.
In February, 1936, at the young age of 29, his political efforts and outstanding legislative record were rewarded when he was appointed to the Dorchester District Court by Governor James Michael Curley. At that time, David was the youngest judicial appointment in Massachusetts history. It was approximately one year before he met his beloved, Ruth, who was a senior at Wellesley College and whom he later married in 1939. David's good friend, then Attorney General and later Governor, Paul Dever, flew to Scranton, Pennsylvania to be an usher at their wedding.
In those years, District Court judges could practice law, but were restricted from appearing before the Criminal Courts. David began a long association with the firm of Holtz & Rose and with the late Jackson Holtz. According to Ruth, on Mondays and Thursdays, David would come home with a headache. They later ascertained the reason for the headaches: those were the days the court held its small claims sessions.
A major aspect of David's law practice was the representation of a number of trade associations, including, among others, the Associated Bedding Manufacturers of Massachusetts, the Storm Window Association, and the Toy Wholesalers of New England. David brought his special skill and talents in arbitrating and bringing people together to these associations, as well as to the many communal organizations which he served.
At one point, David said that he knew he had entered a different stage of his life when he was no longer introduced as "a young man who."
David also played a unique role as a mentor to young people. He knew Warren Gilford, who is present this morning, as a young boy growing up in Dorchester, living in houses which were "back to back." When Warren wanted to go to college, but did not have the funds to do so, it was David who arranged jobs for him at the National Youth Administration, the NYA, and at the Gray Line, where David had earlier worked as a lecturer on a tour bus. David had a way of continuing his friendships. After graduating from law school, Warren became associated with him in the practice of law.
It was in his role as mentor and communal leader that I first became associated with David. In my early years of communal service as a volunteer Big Brother, I had the good fortune to meet him. He was then serving as a past President of the Jewish Big Brother Association and still acting as a senior advisor, mentor and special friend to that organization. I was immediately impressed by his continued commitment to the Association after nearly 40 years of involvement.
What I did not know then, but learned subsequently, was that this unique commitment extended to other communal organizations which he had served with distinction as President, Chairman, and as a significant leader: Temple Emanuel of Newton, the Anti-Defamation league of B'nai B'rith, the Jewish Community Council of Boston, of which he was one of the founders, and the Combined Jewish Philanthropies of Greater Boston, to name a few. As Chairman of the New England Board of ADL, which he served over a ten-year period, he led the fight for passage of the legislation which created the Massachusetts Commission Against Discrimination.
David always played a special role in the communal organizations in which he was involved. He possessed the wise judgment of Solomon, but was never judgmental. He served as "eminence grise" both to the organizations and to generations of their leaders.
David soon became a role model and mentor to me, as well as to many other young lawyers in our community. His career as a lawyer, legislator, and judge was proof that one could achieve professional excellence, while at the same time, serve his community with dedication and distinction.
As so many people in this courtroom can attest, these achievements were augmented by David's personal warmth, his charm, and most of all, his marvelous sense of humor and wit, which made us all smile. He brought all of these special qualities to both the small meetings at which he presided as chair, as well as to the many platforms and dais of large community gatherings, at which he served as master of ceremonies. He developed into a consummate toastmaster -- a role which fit his delight in telling a good story.
I will always be personally indebted to Justice Rose for providing me with a positive role model at the early stage of my career. I suspect that had I not met him, my participation in the community and my view of communal service would have been quite different.
I wish to express my appreciation to Ruth Rose and to the Appeals Court for giving me this opportunity to participate in this special tribute to Justice David Rose.
May his memory continue to be an inspiration to all lawyers in our community.
Eileen M. Hurlihy, Esquire, addressed the court as follows: Chief Justice Warner, Justices of the Appeals Court, Attorney General Harshbarger, Mr. Sherman, Mrs. Rose, Family and Friends of Justice Rose.
It is both an honor and a distinct pleasure to have the opportunity to take part in this tribute today to Justice Rose. I had the privilege of serving as one of Justice Rose's law clerks, a privilege I held in common with a number of other fledgling attorneys during Justice Rose's long tenure on the bench. I speak today not only for myself, but on behalf of all of his former law clerks. Justice Rose was an inspiration to all of us, and none of us will ever forget his counsel, guidance, and warmth.
It goes without saying that Justice Rose was an extremely intelligent man and a legal scholar. But when I remember Justice Rose, the same adjectives come to mind over and over again -- warm, wise, and wonderful. He was certainly all of these things to his law clerks.
I must begin with his warmth. Justice Rose was not large in stature, but he certainly had one of the largest hearts of any man. He made each of his law clerks feel at ease and at home. I will always have a picture in my mind of Justice Rose walking into the law library, where the Appeals Court clerks sat hard at work at their library carrels, with a smile on his face and a greeting for everyone. Justice Rose never summonsed me to his office, or sent me a memo assigning work, or even called me in the library to make a request. Instead, he made a daily visit to my desk. I was always amazed that he knew the names of all the judges' law clerks and everyone who worked at the court, and he always had a word of encouragement for everyone.
His warmth touched the lives of his law clerks on many levels. It extended without limit in the area of professional encouragement. As a recent law school graduate in awe of the court, my initial inclination was to hold my thoughts to myself as Justice Rose would describe to me the substance of the Justices' discussions of the cases and the majority or minority opinion that I would assist in preparing. But I soon learned that it was not Justice Rose's style to let me, or any of his law clerks, sit in silence. No matter how impassive I thought my facial features were during our meetings, Justice Rose was so perceptive that he always knew exactly when a thought was crystallizing in my mind, and he would break off and announce to me "There's something you want to say," almost before I knew it myself. He constantly encouraged his clerks to think and speak their minds, and always made us feel as if we had something significant to contribute to the functioning of the court. At the outset of our careers in the law, he gave each of us the ultimate measure of professional respect, a wonderful foundation for our future endeavors.
His warmth also extended to all of us on a personal level. Justice Rose was always solicitous. He was genuinely concerned about our health and happiness, and he was always ready to listen or give advice. We were definitely treated like members of his family, both while we were his law clerks and in the years that followed. I felt particularly lucky because I also knew Mrs. Rose from my days at Wellesley College, and there was no question that Mrs. Rose both shared and inspired all of Justice Rose's wonderful traits.
Justice Rose encouraged us to get involved in the legal community and the community at large by his unsurpassed example. He was very supportive of his alma mater, Boston University School of Law, and he encouraged those of us who were graduates of the school to become active in the alumni organization. I have many fond memories of attending the Boston University Law School downtown luncheons as Justice Rose's guest along with an entire table full of former law clerks.
Justice Rose certainly nurtured us as his law clerks, and he gave us a superb model to try to emulate. There are quite a few fine legal minds in this country, but few wise men and women. Justice Rose was a wise man. He had a rare blend of intellect and humanity that made him always seek true justice. It was inspiring to listen to him discuss a case and hear his thoughts not only about the law and specific precedent but also about the practical implications of a decision and the immediate results to the litigants before the court. He always cared about having the decisions be "right" in every sense of the word.
It was also an inspiration to watch Justice Rose on the bench, something that his law clerks always did. He had the ability to ask probing questions while remaining polite and considerate no matter what he thought of the arguments being made. Justice Rose treated all of the attorneys who appeared before him with the utmost respect.
It was definitely professionally enlightening and educational to work for Justice Rose. But it was more. Quite simply, it was fun.
Justice Rose was a wonderful man. He had a great sense of humor. He was witty and charming and made every day at the Appeals Court an enjoyable one. He had an easy grace that any trial attorney would die to have, and no one could tell a story better than he could.
He also had the ability to bring out the best in everyone who had contact with him. As one of the original Justices of the Appeals Court, his warmth and personality played a major role in creating a cooperative and caring atmosphere. His mark will long remain at the court, and in the hearts and minds of all of his former clerks.
Associate Justice Christopher J. Armstrong, speaking for the court, responded as follows:
Chief Justice Warner, former Chief Justice Hennessey and Justices of the Supreme Judicial Court; Chief Justices Mulligan of the Superior Court and former Chief Justices Mason and Lewiton, Mr. Attorney General; Mr. Sherman and Ms. Herlihy; our dear friend Mrs. David A. Rose, and all of your family; friends and colleagues of Justice Rose at the bar and on the bench, and my colleagues on this court, both here on the bench and in the well, including, particularly, Justice Em Keville, who have collectively accorded me the honor of delivering the court's response to the motion of the Attorney General:
One who, in future years, is perusing the pages of the Massachusetts Appeals Court Reports will find, at the end of the fourth volume, an entry that is perplexing because it records proceedings, already alluded to by the Attorney General, on the retirement of Justice David A. Rose of this court on March 11, 1976. Retirements are not normally so recorded. For precedent, one must look back more than a century ago, to the retirement of Chief Justice Lemuel Shaw in 1860, reported in 15 Gray 599; for it has been the custom ever since that time, for the appellate reports to record only memorial proceedings, such as today's, on the passing of an esteemed appellate justice. And it may occur to one who happens on the report of the 1976 proceedings, to wonder why the precedent of an earlier century was resurrected for that occasion.
The answer is that the proceedings were deemed historic for three reasons. First, the occasion marked the retirement from the bench of a man who was then senior in length of service to any other sitting judge, of any court in the Commonwealth. Second, it marked the last time that the original six justices of the then new Massachusetts Appeals Court would be sitting together as judges in active service. Third, it was deemed an appropriate occasion to celebrate the successful establishment of the Appeals Court during the preceding three and one-half years, the opening chapter in the life of an institution that is now organically integrated into the Commonwealth's justice system. The occasion was, for the Appeals Court, the end of the beginning.
I was privileged to serve with David Rose as one of the original members of this court. In that alone, there was anachronism, for I was born the same year that David Rose was appointed as a justice of the Dorchester Municipal Court -- he was thirty-six years my senior both in age and in length of judicial service. Yet I think I may safely say that of all the many close friendships formed among those original six judges, no stronger bond developed than that between the senior justice and the junior justice.
Of seniority I should say a word. The six original justices were all appointed by Governor Francis W. Sargent, and the first time we gathered together as a group was on a day in August, 1972, when Governor Sargent, in the Senate Chamber, announced our nominations to the public simultaneously. Our confirmations by the Executive Council trickled in by dribs and drabs, but by October 6, 1972, we were all sworn in simultaneously by Governor Sargent in the House Chamber. Since our appointments were essentially simultaneous, and since seniority in an appellate court has functional significance for sittings and for assignments, we agreed to determine seniority amongst ourselves by these rules: that, after Chief Justice Hale, seniority would be governed by length of prior judicial service - that made David the senior associate justice and Em Keville the next senior; and, among those with no prior judicial experience, seniority would be governed by age; so Reuben Goodman and Don Grant followed in that order, and I brought up the rear as the junior justice.
The Appeals Court was born into the world in the autumn of 1972 with no place to sit, no books, no paper to write on, and no appropriation, even to pay salaries. On the plus side, we had three experienced judges, two experienced appellate advocates, and a backlog of cases to be decided, courtesy of the Supreme Judicial Court, which celebrated the date of our creation by transferring to us one hundred sixty-nine pending appeals. The story of the next three plus years -- that crucial opening chapter that ended with David's retirement -- is the story of how the Appeals Court coped; and this is a fitting occasion to recall, however inadequately, the major contribution that David A. Rose made in those formative years.
The first point to be made is that David Rose came to the court with vast experience; thirty-six years of unbroken judicial service at the District Court and Superior Court levels, and some ten years of active practice before that. He was a well known figure to the bar, and he had earned an outstanding reputation as a judge of ability, fairness, compassion, and unfailing courtesy. Chief Justice McLaughlin of the Superior Court grumbled, only half in jest, that, in Allan Hale and David Rose, he had lost "two of the finest trial judges who have ever served our court" to the Appeals Court. The point I wish to emphasize is that, beyond bringing a wealth of experience to the Appeals Court, David Rose's appointment was one of those that gave instant credibility and stature to the new institution. That is to say, the Appeals Court fell heir to the towering reputations of its three judge members: David Rose, Allan Hale, and Em Keville. It is no small help to a new court that the bar expects it to do creditably.
Our first problem was where to locate. Here David took care of everything. He and Allan Hale, using their good offices with Superior Court Chief Justice Walter McLaughlin, arranged for us to work temporarily out of the Superior Court Judges' Library on the eleventh floor, and later from a room of our own, also on eleven, from which we interviewed and hired law clerks - two years worth at once, because we were already into the hiring season for clerks for the 1973-1974 court year. We interviewed secretaries, but there our responsibilities for staff ended, because our statute provided that all other personnel were to be appointed by others.
In the continuing struggle for administrative control of our own court, we scored a victory that especially delighted David, one that he reminisced on many times over the years. It concerned the layout of the fifteenth floor of the so-called New Courthouse, which was then the Suffolk County jury pool, complete with bedrooms for sequestered juries. This was to be the new home for the Appeals Court, and we shared it with juries during the months after we started our sittings. The jury bedrooms became the judges' offices. The two major pool areas were to be the Clerk's Office and the justices' library and conference room. Those in charge of the renovation presented us with a layout for our approval. They had the Clerk's office on the desirable east side of the floor, with five windows overlooking Boston Harbor. Seeing that the floor was symmetrical, we simply changed east to west on the plan, in effect pivoting the layout 180 degrees, and then gave our approval. In this way, our library and conference room ended up with the harbor view.
David agreed to be the library "committee." No more fortunate designation could have been made. David, operating with almost no funds, managed to parlay our meager resources into a law library of enviable proportions. From his experience riding the circuit, so to speak, in the Superior Court, and having the most observant eye of any person I've ever met, he knew where the books were buried, where there were extra sets and unused volumes. Working closely with Edgar Bellefontaine, Librarian of the Social Law Library, who was of inestimable help in those formative years, and with the representatives of the major lawbook publishers, such as West and Lawyers Cooperative, David soon had books pouring in from all over the Commonwealth and beyond. David had an extraordinary gift for eliciting donations from the publishers, and to this day inertia still brings us free upkeep for some sets that David accepted for the court on a complimentary basis. Starting from nothing, within a year David had procured for each judge's office a complete set of the Massachusetts Reports, the Massachusetts Digest, our choice of the green set or the black set of the annotated Massachusetts General Laws, Shepard's Massachusetts Citations, the complete Massachusetts Practice Series, the Barron and Holtzoff Federal Practice Series, soon to be followed by Wright and Miller, and a range of reference books from Black's to Webster's. For the central library he built a collection of these basic books, for the use of the law clerks, plus hundreds and hundreds of the more specialized sets and volumes that are the core of our court library to this day.
David took meticulous care of his new library, and it reflected his pride. He selected the furniture, and it became a beautiful, airy, room, with a feeling of spaciousness and quiet dignity that were the result of his careful planning. For our seven law clerks, it was their primary place to work. David gently enforced a set of rules for minimizing conversation and keeping tones hushed. Except on celebratory occasions, food and drink were banned. The room became a hub of our court, a place where judges and clerks alike could work in quiet study and concentration. In the years after David's retirement, after the court began its expansion, the library, like the rest of the New Courthouse, fell to the pressure of more and more traffic. The books were eventually transported, with the law clerks and many staff attorneys, to makeshift quarters on the 16th floor, and David's once beautiful library was subdivided into offices for five judges and two secretaries. But David's collection remains largely intact, and one day near the end of this century, it will be reconstructed in the Old Courthouse, in the Appeals Court's new, permanent quarters. It is my hope that our Court can again have a well furnished, attractive library, once again a place for quiet study and research and contemplation, as David envisioned it, and that we will name it the David A. Rose Library in memory of his giant contribution.
But I've moved ahead of myself.
The first sittings of the Appeals Court were held in November, 1972, in a courtroom borrowed from the Superior Court, room 1006, the same room used one day a week by the SJC for its single justice hearings. This room later became our regular courtroom. We split ourselves into two panels which went unchanged for three months. One consisted of Chief Justice Hale, with Em Keville and Don Grant. David presided over the other, with Reuben Goodman and me as side judges. Sitting with David, I instantly realized why he was so much beloved by the trial bar. He ran the courtroom in a gentle, urbane manner that bespoke his great respect for the attorneys and allowed them full scope to make their arguments. The hallmark of his courtroom was the contagious courtesy and restrained, good-natured civility that he somehow imparted to all the participants. In this, our necessarily contentious line of work, his presence on the bench caused rancor and discord to be muted, and the lawyers took on a heightened sense of pride and satisfaction in their work. David treated them and made them feel like professionals.
Coming to the court with little experience in litigation, I was the beneficiary of many shaping influences in those early years of the Appeals Court. Allan Hale, who had the most varied experience and the most encyclopedic knowledge of law of the six judges, was a gifted teacher and had the keenest feel for the difference between what was fine in theory and what would work in practice. If Allan taught practical good sense, Don Grant taught craftsmanship and precision in opinion-writing. As an editor Don had no peer. Em Keville, besides teaching me what little I knew of the then arcane ways of the Probate courts, was, like Reuben, an unbending voice of conscience: Em with a stern emphasis against abuses of power, both public and private, and Reuben with an embracing emphasis on compassion for the poor and powerless.
But it was David who offered the model of how a judge should run a courtroom. No one could leave his courtroom feeling his argument had not been heard. No one could leave feeling rebuked or humiliated. When, from youth or inexperience in appellate practice, a lawyer would flounder, David would characteristically throw him or her a lifeline, guiding the lawyer smoothly and unobtrusively back to surer ground. Older members of the bar relate that when David presided in the Dorchester Court as far back as the 1930's, he was extending the same helping hand to young lawyers starting out, who were barely his junior. Plainly, his respect for his fellow lawyers was not the product of the mellowness imparted by the passing years, but was inborn and integral. David also had a sure eye and a keen nose for phonies or fraud, but he would not berate the offender in public, in the courtroom. By casual and subtle remark, always humorous, David would let the lawyer know he was on to his game.
David's kindness embraced the whole Appeals Court family. He made it a point to know all of the staff, and he developed a reputation for being a source of good advice and frequently a helping hand. To this day our veteran staffers recall instances where David paved the way for a job interview by a phone call to a friend, of whom he had many, in most of the law firms. This often was done without the law clerk or other young job-seeker knowing that David had paved the way. I know of one instance where David, learning that a young employee was strapped because of a delayed mortgage closing, called a friend in the firm that was doing the legal work, and the mortgage closed overnight. I know of another young employee of the clerk's office who was persuaded by David to go to law school. Persuaded is too soft a word. David practically filled out the application for her and had it handdelivered with his endorsement. That young employee was in due course admitted to the bar. and later became the Clerk of the Appeals Court. There are many members of the bar today who think of David Rose as the guiding influence of their careers. David's guiding extended even to matters of dress and grooming. Because of his kindly, avuncular relationship with the younger staff, he could, without offense, tell one that he would not get a job with a law firm with shoes like the ones he was wearing, another, to keep his eye glasses cleaner, still another, that a particular overstuffed down coat made the wearer look like a hot air balloon. David knew that, to a young person seeking to advance his career, matters of dress and grooming are important, and because he was so loved and trusted he could take liberties that others couldn't in giving such advice. Perhaps because of the difference in their ages, David provided the junior justice with the same type of advice. David would tell me when I needed a shoeshine which would happen to be at the exact moment that we were approaching a bootblack. The robe I am wearing today, my only robe, is the one David ordered for me in a deep discount sale.
David was an avid gardener. Not only did his own office bloom with coleus and impatiens, but he would bring plants to other offices as well, including my own. "Prune, prune, prune," was his constant advice, and he would stop by to remove dead leaves and add a little fertilizer.
From the earliest days the Appeals Court judges would go to lunch as a group. When David was on the street, in the courthouse environs, or near buildings tenanted by lawyers, he was constantly hailed by friends, and the luncheon trip often seemed like a royal procession. It kept moving but often slowly.
David was generally conceded to be the best dressed judge in the court system. His dress was on the dapper side of conservative good taste, and he was never without a breast pocket handkerchief peaked just so, and a felt hat or straw hat shaped in the Bogart style. I recall one lunch where David's customary good humor deserted him. We were eating in a nearby cafeteria when a mouse -- if truth be told, a largish mouse -- darted in zig-zag fashion across the floor and ended up in David's hat. He was speechless in his chagrin.
David was a wonderful conversationalist and was fluent in theater, music, and dance. He was particularly skilled in the art of small talk, and could and did have an easy and friendly conversation with people from any walk of life. He possessed a very nimble wit, which was always kind. The only butt of his stories was himself; he relished recounting instances where he had been caught flatfooted. Ethnic or off color jokes told by others in David's presence put him in a dilemma. On the one hand, he was genuinely distressed, which I would learn in his confidence later. On the other hand he was too polite to register his discomfort on the spot. I think it was the only type of situation he did not know how to handle.
He was unobtrusively witty in the courtroom, and his wit was always unstudied and appropriate. It often eased tensions and restored a sense of perspective. Judge Kent Smith, who was then a trial attorney in Hampden County, recalls that David was wonderful to try before. He was in David's courtroom one day when an appeal came on from a District Court conviction. The 18-year-old defendant was charged with being a Peeping Tom. Despite his youth and prior spotless record, the defendant had been given a harsh jail term by the District Court judge. The prosecutor began by intoning the gravity of the offense, for the object of the defendant's interest was the wife of Alderman so and so of Westfield. "The alderman's wife?," asked David in mock horror. "That's an offense against the realm if I ever heard one." At that point everyone knew the case would be handled with a sense of perspective. The young man was put on probation for a short time and never had another brush with the law.
The Appeals Court early developed a tradition of collegiality, and David did much to foster this. He and Ruth more than once entertained the court at their lovely Newton home, and this was an important catalyst in developing close ties among a very disparate group of judges who had come together quite suddenly in a court without custom and tradition to guide us. Harmony and cohesion were David's rule of life. It is not surprising that he dissented only once in eleven years on the court. The case was Simon v. State Examiners of Electricians, reported in the eighteenth volume of the Appeals Court Reports. This was nearly at the end of his period of service as a recall judge. His dissenting position was sustained on further appellate review in the SJC, 395 Mass. 238. To the best of my knowledge David remains the only Appeals Court Justice, one hundred percent of whose dissents have been sustained on further review. It is just as well this happened late in his career; otherwise he might have dissented more.
In recalling David, I am put in mind of the simile composed by Longfellow on Charles Sumner's death:
Were a star quenched on high
For ages would its light
Still traveling downward from the sky
Shine on our mortal sight.
So when a great man dies
For years beyond our ken
The light he leaves behind him lies
Upon the paths of men.
The light of Justice David A. Rose still casts a long shadow on the Appeals Court, and it shall always, so long as we remember and emulate his example: of respect for each others' views, and for the counsel that appear before us; of good will and good humor in our labors; of perspective and courtesy when differences arise, as they must; of tolerance and understanding, and of kindness and civility to all who come to us for justice. The increasing pace of litigation puts a heavy strain on these virtues, but, ironically, they are also the virtues that will enable us to weather the storm. With David's memory to guide us, that lesson will not be lost.
On behalf of the Chief Justice and the Associate Justices of the Appeals Court, it is my privilege to allow the motion of the Attorney General that today's memorial proceedings be spread upon the records of the court.
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