May 12, 2006
66 Mass. App. Ct. 1121 (2006)
A special sitting of the Appeals Court was held at Boston on May 12, 2006, at which a Memorial to the late Justice Edmund V. Keville was presented.
Present: Chief Justice Armstrong; Justices Perretta, Greenberg, Laurence, Lenk, Beck, Rapoza, Gelinas, Duffly, Cypher, Grasso, Kantrowitz, Cowin, Berry, Doerfer, McHugh, Kafker, Cohen, Mills, Green, Trainor, Graham, Katzmann, Vuono, and Grainger; and Retired Appeals Court Justices Kent B. Smith, Raya S. Dreben, and Frederick L. Brown.
Thomas F. Reilly, Attorney General, addressed the court as follows:
May it please the court. As 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 Edmund V. Keville, an original member of the Appeals Court of the Commonwealth.
Edmund V. Keville lived a life of extraordinary accomplishment during an extraordinary century. Known to family and friends as "Em" Keville, Justice Keville was born on July 30, 1910, the second of three children of William J. and Frances X. Keville. William J. Keville was a Realtor and citizen-soldier, receiving medals for service during World War I and serving as Adjutant General of Massachusetts during World War II. Justice Keville was to tell his own children of the deep gratitude he felt for his parents' example of character, courage, and devotion to family and the community at large.
When he was quite young, his family moved to Belmont, where he was to live throughout his life. Edmund Keville graduated from Belmont High School in 1927, at the age of sixteen. As was not uncommon in those days for college-bound students, he then attended two more years of private school, graduating from the Belmont Hill School in 1929. The Belmont Hill School had been founded just four years before he enrolled, and he was to maintain close ties with the school for many years, serving as a founding member of its alumni association and as secretary and treasurer of the school's governing board. In 1967, the school recognized his devotion and accomplishment by awarding him its Distinguished Alumni award, a distinction he shared with the likes of Yale President Kingman Brewster, Boston Globe editor Thomas Winship, and Massachusetts General Hospital director Dr. John Knowles.
His start at the school was not auspicious, however. The headmaster wrote to his father: "Dear Colonel Keville: I am enclosing herewith Edmund's first half term report which, I am sorry to say, is not a very satisfactory document." Fortunately, he turned things around. He later credited those two years with a profound effect on him: "I came here," he later wrote, "from a school where the game had been to break the rules and not get caught. Apart from scholastic difficulties, more than a dozen trips to the Headmaster's Office for disciplinary reasons were required before it dawned on me that here was a man who was my friend, who wanted to trust me and who believed in my ability to do what the school expected of me."
Edmund Keville did well enough that he was admitted to Harvard College, from which he graduated in 1933 in the special honors concentration of history and literature.
He married Mary Chipman in 1936. They were to remain together until her death in 1984.
Having graduated from college in the middle of the Great Depression, he worked briefly as a messenger and life insurance salesman. While continuing to sell insurance, he enrolled in the evening division at Boston College Law School, from which he graduated in 1939.
Admitted to the bar in 1941, Edmund Keville began practicing law in Boston with Ely, Bradford, Thompson and Brown. Early on, he demonstrated an interest in public service. In those days, one could be in private practice and serve as a part-time district attorney. The firm's "Bradford" was Robert F. Bradford, who also served as chief prosecutor in Middlesex County, and so Edmund Keville became a (part-time) assistant district attorney.
When the United States entered World War II, he served in the United States Navy as a lieutenant commander, returning to private practice at the war's end. In the fall of 1946, Robert Bradford ran for governor. Keville served as his assistant campaign manager. Bradford won, serving as governor from 1947 to 1949.
In 1952, Keville served as executive state director of Citizens for Eisenhower. The following year, Keville joined the administration of newly-elected Governor Christian Herter as chief secretary. The Christian Science Monitor recognized him as "one of the hardest working members of the governor's cabinet."
In 1954, Governor Herter appointed Edmund Keville as a judge in the Suffolk Probate Court, a job he enjoyed tremendously, and where he served with distinction for the next eighteen years. As a trial judge, he was known for his unfailing courtesy to litigants. Mary Fitzpatrick, who later became Chief Justice of the Probate and Family Court, worked closely with him as assistant register of probate. She remarked, "For me, Judge Keville embodied Socrates's classic definition of a judge — 'to hear courteously, to answer wisely, to consider soberly, and to decide impartially.'"
He was a man of principle, and was not afraid to take a stand. In 1960, when one of his fellow probate judges appointed his own son as trustee of a large estate, Judge Keville asked the judge to reconsider: "My sole concern and my strenuous objection," he wrote, "are directed to [the] effect [of the appointment] upon the integrity and reputation of our court." When the judge did not respond, Judge Keville wrote to the Supreme Judicial Court and asked it to intervene.
Because he was a very modest man, we have only hints of the many civic activities of which his children were only generally aware. Edmund Keville was not one to collect newspaper clippings or display awards. We do know, however, that he was very interested in establishing community mental health organizations and improving the coordination of existing mental health organizations. He served on several special commissions and committees. A 1968 report of the Department of Mental Health makes special mention of the Keville Committee, carrying forward the idea of community mental health centers. He also served on the ethics committee of the Massachusetts Eye and Ear Infirmary from 1939 to 1972.
In 1966, his interest in preserving families led him to support a legislative proposal to establish a Family Court with a conciliation division as a way of saving marriages. In 1970, Governor Frank Sargent appointed him as chair of the Governor's Commission on Adoption and the Foster Care System. Sometimes known as the Keville Commission, its comprehensive report, issued in the spring of 1973, called for sweeping changes in adoption and foster care policies and procedures, and led to the creation of the Office for Children within the Executive Branch.
In 1972, Governor Sargent appointed Judge Keville as one of the original six members of the newly-created Appeals Court. He served as a member of this court for the next seven years, writing 295 opinions. He also was the first Appeals Court judge to hire a female law clerk.
Chief Justice Armstrong, then his colleague as an associate justice, recalls that Judge Keville's opinions "read beautifully." They also have stood the test of time. Just last September, a panel of this court cited his first opinion for the court, involving a petition by the executor of a will seeking instructions as to the distribution of the estate.1
Although he enjoyed appellate work, Judge Keville realized that his first judicial love was the Probate Court (now the Probate and Family Court). In the fall of 1979, just a few months shy of his seventieth birthday, he retired from the Appeals Court so that he could serve as a recall judge in the Probate and Family Court. As he told his colleague, Associate Justice Rudolph Kass, "I miss the real people."
In keeping with his modesty, he refused the request of his Appeals Court colleagues to hold a farewell dinner or other testimonial on the occasion of his retirement from the Appeals Court. He served in the Probate and Family Court for more than ten years, retiring finally in 1990.
Edmund Keville remained physically active for many more years. He played tennis well into his nineties and cut his lawn with a hand-powered mower.
His daughter Kathleen notes that he lost neither his legal training nor his sense of humor. In the fall of 2004, he went to bed early on the night the Red Sox would finally win the World Series for the first time since he was a boy of eight. When he awoke and Kathleen gave him the news, he responded, "Are you sure there is any basis for that in fact?" Then he smiled and went back to bed.
Edmund Keville died at home at the age of ninety-four on February 28, 2005.
He and Mary (Chipman) Keville were the parents of three children: a son, Peter; a daughter, Patricia Keville Fogle; and a daughter, and lawyer, Kathleen Keville. He and Mary also are survived by two grandchildren and two great-grandchildren.
It is an honor for me, as Attorney General (and, like Edmund Keville, a former prosecutor in Middlesex County), to be here 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.
Attorney Richard Johnston addressed the court as follows:
May it please the Court, family members and assembled guests:
My name is Richard Johnston. I am a partner at Wilmer Cutler Pickering Hale and Dorr in Boston, where I have been a trial lawyer for over twenty-five years.
The only other full time legal job I have ever held was as law clerk to the Hon. Edmund V. Keville the year after I graduated from Harvard Law School. It was a year that served as a foundation in many ways for my career as a lawyer. And it began a close friendship with Judge Keville that lasted until he died.
I am honored to have been asked by the Court and Judge Keville's family to speak about him. I would like to share my thoughts about him as a member of the bar, as a judge and as a person.
I start with Judge Keville's career as a member of the bar. He spent only a fraction of his career at a private law firm. To Judge Keville the law was not a business, as it has become to so many practitioners today. He did not view the law from the standpoint of billable hours or financial bottom lines. Nor was the law just a profession to him — a way to make a living in an intellectually stimulating fashion. Rather, to Judge Keville, being a member of the bar meant responding to a higher calling, performing a public service. You have heard the Attorney General identify the various public positions on Judge Keville's curriculum vitae, including assistant district attorney, chief secretary to Governor Christian Herter, Probate Court judge for nearly twenty years, Associate Justice of the Appeals Court for seven years, and after his retirement, probate judge again. These positions, all in the service of the Commonwealth and in furtherance of what he regarded as the public good, explain Judge Keville's values.
He spoke often to me of his different positions in Massachusetts government, not in an egotistical way, but in the proud, reflective and dignified manner of someone who had chosen to apply his legal skills in the interests of the Commonwealth and enjoyed doing it.
It is no surprise that several of Judge Keville's clerks have worked in the public sector or have emphasized pro bono work within the private sector. One clerk has served as a federal prosecutor, another is a legal services attorney, and others in private practice have been prominent in the pro bono and access to justice movements.
Judge Keville counseled me as I was considering what to do after clerking that Hale and Dorr would be a great opportunity in part because it had been the firm of Reginald Heber Smith and Joseph Welch, both of whom helped create a strong pro bono culture with a national scope at the firm.
As a jurist, Judge Keville had a marvelous temperament. He was principled but not ideological. He was fair but not naive. He sought to be practical, trying to understand what lay behind the briefs and posturing. He enjoyed the people part of cases as much as the intellectual part and did not believe in writing in his opinions more than the facts of a given case required. Indeed, it was the people part of the law which drew him back to the Probate and Family Court after he retired from this court. There he appointed me as a guardian ad litem in several cases, which enabled me to see him in action as a presiding trial judge. Despite the traumas of divorce cases and child custody disputes, as well as the pro se avalanche affecting the Probate and Family Court, Judge Keville delighted in the opportunity to work in that court and to break down a case involving people, families, and children to its essentials to achieve a fair result.
Finally, I could not talk about Judge Keville, or Em, as he liked to be called by those who knew him, without describing him as a person.
I knew I would relish working for Judge Keville when I interviewed with him during law school. That feeling lasted the entire year I clerked for him. He was a man of character but unpretentious. He was always judicious and judicial in public but he had a wry sense of humor that came through in his chambers when we met to discuss cases. In addition to allowing me to collaborate with him on opinions, he showed an abiding interest in my personal well-being.
For example, he arranged with his son to play my father and me in tennis when my father was in Boston on business. He always inquired about my children in later years and insisted on receiving their pictures with our Christmas card. Several other of his clerks from this court have contacted me and echoed my feelings about Judge Keville's regard for those who worked for him.
One of my most vivid memories of him is from his ninetieth birthday party, which drew a large crowd of friends and admirers to Buzzards Bay. I still can see Em dancing with his daughter, Kathy, in the afternoon sun and smiling with the knowledge, in his personal twilight, that he had gotten most things right in his life.
That he did. I am privileged to have worked for him on this Court and known him as a judge, mentor and friend.
Honorable John Smoot addressed the court as follows:
It is a great honor for me to support the Attorney General's motion.
I was in Judge David Kopelman's lobby when I first learned that Judge Keville had been recalled after his retirement from the Appeals Court and that he would be sitting in the Norfolk Probate and Family Court, where I was working as an assistant register. Judge Kopelman was ecstatic. He used some salty language to convey the message that Judge Keville had big chutzpah and that he was a "stand up guy."
I was to come to learn for myself that courage, a rare special kind of courage, was just one of many qualities that defined Em Keville's character. Nevertheless it was his courage that I found most magnetic about him.
Former Chief Justice Mary Fitzpatrick will tell you that when she worked in the register's office at the Suffolk Probate Court, there was a great deal of tension between Judge Keville and some of his colleagues. As you have heard, the cause of the tension was quite simple — Judge Keville would not let his Suffolk colleagues engage in activities that did not square with his unimpeachable sense of what was appropriate and correct, and what was not. He would not look the other way. Theodore H. White said: "To go against the dominant thinking of your friends, of the . . . people you see every day, is perhaps the most difficult act of heroism you can perform."
Mary Fitzpatrick went on to say that she and her fellow employees found Judge Keville to be a magnificent inspiration and morale booster. In fact, he became her role model, just as he became mine years later.
Anyone who knew him or appeared before him will tell you of his patience, his kindness, and his compassion, how he was soft spoken and how carefully he listened, but what made him great is that he balanced those qualities so perfectly with a tenacity and toughness that were quietly disarming. He never asked for his pen; he always said, "Could you pass me my sword."
Let me share with you the very simple but epic case of Mr. H. Judge Keville was presiding over the weekly contempt session in Norfolk County and the court room, as always, was jammed packed. In due course, the case of Mr. H was called. Mr. H was a man of advanced age who had a serious heart condition. He was a man of great wealth and he had been ordered by another judge to split that wealth evenly with his wife of long standing. The divorce judgment had been upheld on appeal. The contempt hearing was straight forward. The former wife's attorney explained that Mr. H had put all of his assets in bearer bonds and had secreted them away. Mr. H simply responded by saying, "Judge, she will never, ever receive a penny of my money." So began the epic. After several warnings and exploration of all possible alternatives at subsequent hearings, Judge Keville imposed a fifteen-day jail sentence. Now the sheriff of Norfolk County at that time was facing a federal law suit for the overcrowding at the jail. He was not happy to have an elderly man with a heart condition under his supervision, and he let Judge Keville know about it. Needless to say, after a short stay, Mr. H complained of chest pains and the sheriff had to arrange to have him rushed to the hospital. Judge Keville made it clear that Mr. H need not be guarded at the hospital. Upon his release, the sheriff, after allowing for a reasonable period of time for recuperation, was to go pick him up at his home on the basis that, as Judge Keville coined it, Mr. H was "on unauthorized leave from the county jail." Then the letters started pouring in about what an injustice it was for a senior citizen of Mr. H's stature and ill health to be serving a jail sentence. No one outside the court, not even the sheriff, seemed to realize that Mr. H held the key to his own jail cell. The incredible moment of the case came when Judge Keville was sitting at home on a Sunday night watching "60 Minutes" and up popped Mr. H being interviewed in his jail cell telling Morley Safer that "he was serving a life sentence on the installment plan." Keville never bent. I don't remember whether it took two years or three years but Mr. H ultimately paid his wife her one-half share plus interest plus all of her attorney's fees associated with the contempt action. On the day of Mr. H's capitulation, the wife's attorney thanked Judge Keville and stated that he didn't know if there was another judge in the State that would have stuck it out so long to see that justice was done.
He was good to lawyers and litigants and particularly kind to witnesses. Apparently, in college, he was called as witness in a motor vehicle accident case. He was nervous as can be and he found the judge less than sympathetic. Perhaps as a consequence of his own early experience, he took pains to put other people at ease. He was particularly careful not to embarrass lawyers in front of their clients. He once was assigned a two-day trial on a consolidated modification and contempt case. With his usual pretrial thoroughness, he plowed through a six-inch file, saw that three different judges had sentenced the defendant in the contempt action to jail over the course of the case, read the complaint for modification carefully, and finally worked his way down to the judgment of divorce. He then called the attorneys in and politely and, almost regretfully, informed them that he would have to dismiss both actions. He explained that at the time of the divorce, the separation agreement had been "exhibited to the court but was specifically not incorporated in the judgment." In other words, there was no order to enforce and no order to modify.
I don't have to tell the members of the Appeals Court, especially those who served with him, how beautifully he wrote. Chief Justice Armstrong said it best to a Boston Globe reporter: "[He] was the best stylist of all the original Appeals Court judges. He had a very nice way of turning a phrase that made his opinions read beautifully." Those of us who worked with him after he left the Appeals Court hardly heard a word about it. He was a modest man. I once had a disagreement with him over a point of law. He was that kind of judge. You could disagree with him. I offered to research the issue. When I returned about ninety minutes later, I simply said to him, "You could have told me that you wrote the leading case on the issue." He gave me that wry smile of his and chuckled.
He was a first class scholar and I think that when it came to the law he particularly loved the probate side of the court, the thorny trust questions, the will contests and the like. One of the first decisions that he made at the Norfolk Probate and Family Court involved "the doctrine of dependent relative revocation." He just loved that kind of stuff.
Underneath all the accomplishments, Em Keville was a warm and loving human being. It may seem redundant, but he was a very human human being. He had a tremendous capacity to laugh at himself. Mary Fitzpatrick tells a story of a day in Suffolk (before this building was so beautifully renovated) when he took the bench and felt something crawling around under his robe. After the mouse scampered off, he simply took off his robe, shook it out, had a chuckle and resumed the trial. Years later, Judi Murray, the assistant register at the Norfolk Probate and Family Court who worked with him most often, offered to hem his robe which had become a little frayed at the bottom. He gratefully accepted and received the robe back while expressing warm thanks. He then took the bench, and he kept feeling little prickles in his legs. He checked for insects, thought it might be a bee, and then wondered if he was having circulation problems. It seems that Judi had left the pins in the robe. Needless to say, we all enjoyed a good laugh, especially Judge Keville. It's one of the reasons we loved him so much.
We shared his grief when he lost his wife, Mary, after forty-eight years of marriage. We knew how proud he was of Peter and Patricia and Kathleen. When my oldest child was young, we talked about reading books to children. The subject of "Mike Mulligan and His Steam Shovel" came up, which I gathered was a favorite of the Keville children. I admitted that I wasn't familiar with the book. The next day, I found a brand new copy of the book on my desk with the inscription, "To Ben (and his old man) with great affection." He was that kind of man.
The only time I saw him mad was when someone made the mistake of suggesting that modern day pitchers threw harder than pitchers of the prior era. "I can't imagine anyone throwing the ball harder than Bob Feller," he barked back.
Let me close with a quote from an Italian lawyer and scholar named Piero Calamandrei:
"The judge who becomes accustomed to rendering justice is like the priest who becomes accustomed to saying Mass. Fortunate indeed is that country priest who, approaching the altar with [doddering] step, feels the same sacred turbulation in his breast which he felt as a young priest at his first Mass. And happy is that [judge] who even unto the day of his retirement experiences the same [sense of importance] in rendering judgment which made him tremble . . . years before when, as a young [judge], he handed down his first decision."
Em Keville never forgot that there are no unimportant cases, just as there are no unimportant people. His gift to those who were touched by his career as a judge is that he did treat every case with the same importance as his first.
Chief Justice Armstrong, speaking for the court, responded as follows:
It has been twenty-seven years since Edmund V. Keville, one of the Appeals Court's original six justices, retired from the court. He left the court almost a year earlier than he was required to leave by the then newly passed provision of the State Constitution calling for judges to retire at age seventy. He was hale and hearty at the time; he simply preferred to continue his judicial service as a probate judge under the recall statute passed by the Legislature shortly after the adoption of the constitutional amendment and in conjunction with it. He went on to render further extraordinary service to the Commonwealth in that perennially short-staffed court, particularly in Norfolk County which was suffering through the turbulent but blessedly short tenure of a judge who had proved to be unworthy of the office.
When Judge Keville came to the Appeals Court, he had earned the reputation as one of the very best judges of the Probate Court, one before whom lawyers were pleased to appear, confident of a fair, thorough, but nevertheless efficient hearing, and a balanced and insightful disposition thereafter. Probate practitioners from those days have told me that Judge Keville was hugely liked and appreciated by those who appeared before him. He was noted both for his compassion and for his practical wisdom.
Before his appointment to the Probate Court, Judge Keville had been a prominent figure in Republican politics. He had worked for later-to-be Governor Robert Bradford as an assistant district attorney and had a leadership position in his successful campaign for Governor. In 1952 he was executive director of the Eisenhower for President Committee for Massachusetts, and in 1953 joined the administration of newly-elected Governor Christian Herter in a top position as chief secretary. That was a very successful administration. Ten years later, when I came to the Superior Court as a law clerk, I soon came to appreciate that Governor Herter's appointments to that court were men of extraordinary integrity talent and stature — examples being Justice Francis Quirico and Charles Bolster and most prominently Chief Justice Paul Cashman Reardon. Like Keville himself, who had been appointed to the Probate Court, appointment to the bench by Governor Herter was a sure indicium of quality.
Thus eleven years later, when the Appeals Court was created and Governor Francis W. Sargent appointed Judge Keville as one of its members, his appointment, like those of Allan Hale as Chief Justice and David Rose as the senior justice, truly gave instant credibility to the new court within the legal community. As I think back to that time, the Governor's inclusion on the court of his former, somewhat callow and inexperienced chief legal counsel might have raised more questions had it not been for the badge of quality that Judge Keville and the others imparted to the slate.
I had met Justice David Rose as a law clerk, and I had twice appeared before Justice Allan Hale when I was an assistant Attorney General. Justice Keville I had never met, although like every other young lawyer I knew of his towering reputation in the Probate Court.
I have heard people describe him as "flinty" or "brusque"; that he was quick to anger; that he was stubborn and unbending. None of these is untrue, but they miss the man. The first thing that struck me was that Em was extraordinarily warm and affable. He had a sunny smile and a hearty robust warmth. He was quick and witty and laughed heartily. At the same time, he was always courteous and, to women, courtly. Judge Dreben recounts that, when she was new on the court, he took her to lunch and, as the day was rainy, held her umbrella for her all the way to the restaurant. In time, it occurred to me that he was, despite the warmth and affability, very private and reserved. The conversation was always about his visitor, not himself. He never griped or was sarcastic or mean-spirited; at the same time, he was quick to let one know he was angry or disgusted but, having so indicated, did not dwell on it.
Two examples: I once inherited the authorship of a case after another judge had held it for a too lengthy period; concerned others would think I was responsible for the delay, I asked Judge Keville, the third panelist, if he minded if I copied what another judge had done in a similar situation, namely, add a footnote that the author of the opinion had been assigned the case for writing on such and such a date. The trouble with such a footnote, of course, is that it pointed the finger at the original author as having been responsible for the delay. With no hesitation, Em looked me in the eye and said, "I do object, very strongly." End of conversation. It took me a while to digest, but it was a great lesson in character-building that I've never forgotten. A second example: a young assistant district attorney rose to argue in defense of a conviction but could not make her argument because one of the judges on the panel, incensed by police tactics in the investigation, criticized the prosecution for trying to defend such conduct. The judge ended the outburst by saying angrily that he was not interested in hearing her argument. After a long pause, Judge Keville broke the silence by saying, "I am interested in hearing your argument." Thus rescued, she proceeded with her argument. In these examples one sees how Judge Keville won the reputation he did for courtesy and compassion. In the words of Mary Fitzpatrick, who followed Judge Keville as presiding judge in Suffolk Probate Court, "for me Judge Keville embodied Socrates' classic definition of the judge's role — 'to hear courteously, to answer wisely, to consider soberly, and to decide impartially.'"
In retrospect it strikes me as not surprising that the young, new Appeals Court staff found Justice Keville to be the most approachable of the judges. They were young, and judges were — well, judges. Keville, with his natural warmth and concern for the younger staff, could and did break the ice. Paula Snyder, then in her early twenties, was secretary to Chief Justice Hale, and Nancy Foley, destined to become a lawyer and Clerk of the Court, was then a young assistant in the clerk's office. Both would be invited by Judge Keville to tea in his office at 3:00 P.M. He would shut the door and say, "We are incommunicado." He would brew tea and serve cookies he had picked up at lunch from the wonderful bakeries we took so much for granted at Jordan Marsh or Gilchrist's. They would talk about any subject other than the court — horses, movies, politics, or about them — never about Keville. If, perchance, one of them ventured into some complaint arising out of her work at the court, Judge Keville would rise to his full height and intone: "Aquila non capit muscas"; which, in those early days, he would then translate, "Eagles don't capture flies." Soon, the lesson was learned: be above trivial workplace gripes. No negativism. Eagles don't capture flies. Aquila non capit muscas.
I have spoken mainly not of Keville the judge, but of Keville the man, because from those early days, on a young court, the contribution that most vividly stands out in my memory was his example of character, and as a teacher of character. He was a man of impeccable manners and of unshakeable principle. When the Appeals Court was created, the Legislature attached to the court numbers of support staff far in excess of the needs of the court — patronage positions beyond the control of the judges. Pay raises for these positions, however, had to be approved by the judges, and while most of us thought there was no politic alternative to approving, Keville, J., steadfastly refused to sign. He would tell us the pay raises were "an insult to the working segment of the court." He was not cowed by authority. I noticed in his obituary in the Boston Globe the story of a meeting between the Justices of the Supreme Judicial Court and the Justices of the Appeals Court. The SJC judges were complaining that our work was too slow, that our easy cases should be open to speedier disposition. Judge Keville rose to his feet and abruptly left the meeting, saying, "I've got work to do."
As to Judge Keville and the work of the Court, two facts stand out: first, he was, in the opinion of Henry Weaver, whose evaluation I have learned to trust, the best writer of the original six judges. Read his decisions; they are models of clarity, brevity, and felicitous expression. His second panel comment — that is, comments on other judges' draft opinions — were always insightful and useful. They would sometimes contain the phrase, "deathless prose." This was his gentle way of saying, "too long and boring." Far from being aloof and unbending, he would work assiduously to find common ground. An instance: in the first of a series of cases in the late 1970's involving the patient's right to refuse life-saving treatment, Lane v. Candura, 6 Mass. App. Ct. 377 (1978), an elderly lady was refusing to give consent to the amputation of her gangrenous leg, a refusal that would lead to her death. A probate judge had allowed the petition of her daughter to act as her guardian — in effect, to give the consent that Mrs. Candura refused. The evidence of incompetence was the refusal itself, set against a assertion by Mrs. Candura, when asked, that she didn't want to die. We — Chief Justice Hale, Justice Keville, and myself — agreed we would reverse, but the problem was to get an opinion written within the short time the medical exigencies imposed. The Appeals Court, as a practical institutional matter, does not have the leeway the SJC does to release a dispositive order with opinion to follow. I took the assignment and had a draft written on Wednesday, two days later. On Thursday Em and I sat with Allan Hale around his desk, working on the draft. Every sentence was modified and made better, capitalizing on the wisdom and insight of the two older judges. On Friday the decision was released. It was so much the collaborative product of all three judges that I declined to sign it, as if I were the sole author. On the other hand, it was too important a decision to be released as an unsigned rescript. It was issued as a full published opinion, but bore the attribution, "By the Court." In the now thirty-four year history of the Appeals Court, it is the only full opinion so signed.
Despite being what I would consider a truly great appellate judge, Em Keville was never happy with his work here, as he had been with his work in the Probate Court. He would explain, when asked, "I miss the live animals," meaning thereby that he missed seeing the litigants and deciding the facts of the dispute, in contrast to the more academic work of the Appeals Court. Although he was a great team player, he basically didn't enjoy what he called "government by committee." He missed the independence of calling the case exactly as he saw it. Appellate work was to him too much word play. It was not where the judge found his highest calling. "Aquila non capit muscas."
The new regime of mandatory retirement coupled with the availability of recall worked perfectly for him, for it gave him the freedom to return to his work in the Probate Court. He wanted no ceremony, no good-bye parties, no testimonial. He did not enjoy being the center of attention. On the way out, he simply gave Justice Charlotte Perretta, who was to inherit his office, the dish on his desk that he kept filled with Andes chocolate peppermints, for the benefit of staff. He enjoined her to carry on the tradition.
Since David Rose, who had to retire in 1976, was back serving in the Appeals Court on recall, Justice Keville was the first of the original six judges to disappear from the court. He was greatly missed, by judges and staff alike, although all could rejoice at his having resumed his favorite work.
His contributions to the public were immense, in a lifetime of service beginning when he was a young man. He was the embodiment of the noble tradition of public service set by the founders, a tradition he regarded as the bulwark of our democracy. In his own words, written in his Harvard Class of 1933 Twenty-fifth Anniversary Report:
"After a pretty fair exposure to the problem, I harbor an increasing fear that so many of our more able citizens are so absorbed in making a buck that the direction of public affairs is being left, for the most part, to second and third raters. Taking ten seconds to draw a check for a campaign contribution is a poor substitute for active citizenship. To keep healthy, a republic like ours requires more effort and applied idealism than most of us are willing to give to it. I just hope that the roof doesn't fall in before we wake up."
On behalf of the Justice of the Appeals Court, I now allow the motion by the Attorney General to spread these proceedings on the records of the Appeals Court. I thank Attorney General Reilly, Richard Johnston, and Judge John Smoot for your participation today. I thank also the family and friends of Justice Keville for their attendance today. On behalf of the Justices of the Appeals Court, I invite you to a reception on the second floor, in the room opposite the courtroom where Judge Keville used to sit when he was the Presiding Judge of the Suffolk Probate Court. That reception will take place immediately after the court goes into recess.
Thank you all. The court will be in recess.
1 Fiore v. Perry, 64 Mass. App. Ct. 1109 (2005) (unpublished decision), citing South Shore Nat. Bank v. Berman, 1 Mass. 9 (1972).
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