421 Mass. 1603
A special sitting of the Supreme Judicial Court was held at Boston on September 28, 1995, at which a Memorial to the late Chief Justice G. Joseph Tauro was presented.
Present: Chief Justice Liacos; Justices, Wilkins, Abrams, Lynch, O'Connor, Greaney, and Fried; retired Chief Justice Edward F. Hennessey; retired Justices Francis J. Quirico and Benjamin Kaplan;
Chief Justice Joseph P. Warner, of the Appeals Court; Justice Steven G. Breyer, of the United States Supreme Court; and Chief Judge Joseph L. Tauro, of the United States District Court for the District of Massachusetts.
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 G. Joseph Tauro.
After serving as a judge and Chief Justice of the Superior Court for almost a decade, Judge Tauro served with great distinction as Chief Justice of this court from 1970 to 1976 when he became the first Chief Justice in the long history of the Court to be retired pursuant to a 1972 constitutional amendment mandating the retirement of all judges at the age of seventy.
During the ceremony for the swearing in of a new Chief Justice of the Supreme Judicial Court in 1976, Chief Justice Tauro's successor, Chief Justice Edward F. Hennessey, praised his predecessor with the following words:
"It is my honor to follow him in office. He has left memorable tracks in fifteen years of judicial service. He has also left valuable sign posts for the future. Let me leave my tribute to Chief Justice Tauro with this superlative. No person in your time or mine has done as much effective work for the administration of justice in Massachusetts."
As many of us are well aware, the proper administration of justice is one of the most difficult and intractable problems in human experience. The first civilization to bequeath posterity with written records of its existence, the ancient Sumerians, over five thousand years ago left written fragments indicating that they used public arbitrators to relieve congestion in the courts. In ancient Babylonia, in 2100 B.C., Hammurabi's Code laments the slowness of legal proceedings. In Elizabethan England -- Elizabeth the First, that is -- Shakespeare has Hamlet in his "to be or not to be" soliloquy, list the "law's delay" as a justification for suicide. In Victorian England, two and one half centuries later, Charles Dickens' Bleak House indicates that the problem of delay in the courts was so pervasive as to be representative of a general breakdown in society. When early in this century, Chief Justice Vanderbilt warned that court reform is not a sport for the "short-winded," we know he was not exaggerating. And short-winded is exactly what G. Joseph Tauro was not. He was a man made for marathons, not short sprints. Those who knew him recall he was the essence of dogged determination, day after day, month after month and year after year.
Born on January 10, 1906, in Lynn, Massachusetts, G. Joseph Tauro grew up in very humble circumstances. His parents were poor immigrants from Italy. They had four sons and two daughters, all of whom struggled to make ends meet on Bedford Street, an area of Lynn which no longer exists. The neighborhood was poor and racially mixed; this fact helped to instill in young Joe a spirit of sympathy for the underprivileged which he carried with him throughout his life.
His parents had great faith in America and the power of education. Although he was not formally educated, his father, a cobbler, taught himself and became a columnist for the Italian language newspaper. He inculcated his children with the importance of obtaining an education and never, ever quitting. It has been said that the Tauro family motto, if there were one, would have been - "Never quit."
While two of his brothers worked their way through the Boston University School of Medicine -- both became doctors -- Joe put himself through the Boston University School of Law and passed the bar at the age of twenty-one. In those days, legal positions were scarce for young men in his circumstances. The story of his first job at the small law firm of Coughlin & Jacobs was that he waited in the front office for days in the hope of a job opportunity. Finally, Mr. Coughlin walked by him one day and said, "If you're going to spend so much time here, you may as well do some work." Two years later, Joe established his own firm. He developed a great reputation as a trial lawyer, particularly with respect to business and personal injury cases, including the defense of medical malpractice. Lawyers from all over Essex County referred cases to him.
Three years after passing the bar, he married Helen Petrossi. Their marriage would last for the remainder of his lifetime. They had one son who would later join his father's thriving law firm. As a young man, Joe became friends with John A. Volpe, also a son of Italian immigrants, who became Governor of the Commonwealth and later United States Secretary for Transportation and Ambassador to Italy. This friendship would last throughout their lives and they would both die within several weeks of each other. As a young man, Mr. Volpe founded a corporation which developed into one of the biggest construction companies in the United States. Joe would become counsel for Volpe Construction as well as for numerous other large corporations.
As a successful lawyer, Joe became an active participant in the business and civic affairs of Essex County. He served as president of the Boston University Law School Alumni Association, national co-chairman of the B.U. Law Center Fund, a member of the Board of Managers of Lynn Hospital, director of the Security Trust Company, director of the Greater Lynn Heart Association, and a trustee of the Don Orione Home for the Aged in East Boston. In addition to this extensive service, he became a leader in the legal community. Active in both the American and Massachusetts bar associations, in 1960 he served as President of the Massachusetts Trial Lawyers Association. He had achieved the pinnacle of success, but his career was just beginning.
When John Volpe was elected Governor of the Commonwealth in 1960, he appointed G. Joseph Tauro as his Chief Legal Counsel. Joe accepted the job on the condition that the Commonwealth pay him one dollar per year. Within one year, Governor Volpe appointed his counsel to serve as a Justice of the Superior Court. The following year, G. Joseph Tauro was appointed the ninth Chief Justice of the Superior Court, a position in which he would serve from 1962 to 1970. At the induction ceremony in 1962, Governor Volpe stated:
"I can truthfully say, as God is my Judge, that I have met many, many men in my lifetime; I have seen many, many lawyers, conversed with a great many; I have talkee with many learned judges; and I would truthfully have to say that with none have I become as intimate and as close as I have to your new Chief Justice. And throughout all these years of our association, both as friends and as a relationship between client and attorney, never have I observed anything but the highest motives, the great, deep sense of personal responsibility, a dedicated character, a man always striving to feel that he is doing the right thing."
That deep sense of the personal responsibility of being a member of the judiciary was one of the most widely-noted characteristics of G. Joseph Tauro the judge. One observer stated that Judge Tauro had "an abiding, virtually religious reverence for judicial office and the grave moral responsibilities inherent in its acceptance." Another indicated that the judge treated the judiciary as some might treat the priesthood. For this reason, on several occasions, he refused to accept awards, stating that his time was better spent on his work as a judge.
His views on the role of a judge were strict. He said:
"No lawyer who has the proper regard and respect for his profession and for the judiciary should privately entertain and fraternize with a judge before whom he or his associates appear frequently.
"Such demeanor is not only distasteful but is resented by other members of the bar. Any attempts at it should be vehemently resented by the judge.
"The trial judge, in effect, must tread a tight-rope. Common causes and interests as well as his duties bring him into daily contact with lawyers. Yet, except under the most unquestionable circumstances, he must avoid even the appearance of undue closeness and friendship."
In an article titled "The Few and the Many," which cautioned judges about the harm a small minority of judges can cause by misconduct, even in minor matters, he wrote:
"We as judges have been the recipients of a great honor and of a privilege for public service which is afforded very few. Our acceptance of this proud position carries correspondingly grave responsibilities."
Throughout his career, these precepts guided all of Judge Tauro's actions.
During his nine years as a Superior Court judge he presided over many important trials. Two of his most important and controversial rulings upheld the power of the State to prohibit pornography and the use of marijuana. But it was his appointment to the position of Chief Justice of the Superior Court which allowed him to use his pragmatic but visionary skills to their full advantage for the purpose of making substantial improvements in court administration. Among the many examples of the progressive changes he brought to the Superior Court are the following: statutory amendments to facilitate the trial and disposition of land damage cases; the commencement of special summer sessions which were successfully used to eliminate a backlog of thousands of land damage cases and to guarantee the right of speedy trials in numerous criminal cases; the establishment of a statewide law clerks program which permitted judges sitting anywhere in the Commonwealth to have ready access to competent assistance in legal research; (This program, which in the 1960's was unique for courts of general jurisdiction, also served as an unparalleled opportunity for young lawyers to gain practical experience in research, writing, and courtroom observation.) the coordination of efforts among the Attorney General, the Governor, the Legislature, the district attorneys, clerks of court, probation services, state and county bar associations, the news media, civic organizations, and the judiciary to improve the administration of the courts and the quality of justice in the Commonwealth; (Perhaps the most important of these coordination efforts was Chief Justice Tauro's successful leadership of the effort to allow oral discovery in civil cases - an effort I will mention again.) early projects to improve case management in the Superior Court including a project sponsored by the Institute for Court Management; the first major consideration of computers in the management of cases and courts. Much of this was done while Chief Justice Tauro also presided over the Superior Court's First Criminal Session in Suffolk County, generally considered at the time to be the most grueling assignment in the Massachusetts judicial system.
His numerous improvements in trial court administration earned him a well-deserved national reputation as an exceptionally innovative court administrator. Partly as a result of this reputation, Governor Francis Sargent offered Chief Justice Tauro an appointment as Associate Justice of the Supreme Judicial Court to fill the vacancy created by the death of Justice Arthur Whittemore in 1969. In a letter to the Governor (October 22, 1969), Chief Justice Tauro declined the appointment. Recognizing the great prestige of an appointment to the Supreme Judicial Court, he stated,
"After very careful deliberation, I have decided that my present office, for me, affords greater opportunity for public service -- especially in the field of judicial administration . . . . In addition, the prestige of my present position has given me the opportunity to serve on several important national conferences and committees dedicated to improving the administration and quality of justice in this country, a matter of great interest and concern to me."
For similar reasons, he would also decline an offer to be appointed to the United States Circuit Court of Appeals for the District of Columbia.
In 1970, upon the resignation of Chief Justice Raymond Wilkins from the Supreme Judicial Court, Governor Sargent again offered him a position on the Supreme Judicial Court, but this time as its Chief Justice. Aware of the immense caseload of the Supreme Judicial Court, Chief Justice Tauro had for some time been advocating the establishment of an intermediate appellate court. Such a court would allow the Supreme Judicial Court to concentrate on cases of substantial social impact and, most important for Judge Tauro, permit the highest court of the Commonwealth to exercise its inherent and statutory powers of general superintendence for the purposes of improving the administration of justice. Accordingly, Chief Justice Tauro's response to the Governor was conditional. If Governor Sargent would agree to support the establishment of an intermediate appellate court, he would accept the appointment. The Governor agreed and he accepted, thereby becoming the first and only person ever to serve as chief justice in both the Superior Court and the Supreme Judicial Court. He was also the first Italian-American to serve in either position.
In 1992, on the occasion of the 300th anniversary of the Supreme Judicial Court, the oldest continuing court in the Western Hemisphere, Cornell University Press and the Supreme Judicial Court Historical Society jointly published a commemorative history of the Suprerpe Judicial Court. The 790-page volume contains an overview history of the court and its predecessors covering the period from 1630 into the 1980's. That two of these articles feature the efforts of G. Joseph Tauro, as the prime mover on two of the major administrative breakthrough reforms in the long history of the court, is a monument to the prodigious efforts of G. Joseph Tauro, who was Chief Justice of the Supreme Judicial Court for only five years and three months.
The first article covers Chief Justice Tauro's follow through on the promise he extracted at the time of his appointment to the Supreme Judicial Court. The article, titled "Creation of the Appeals Court and Its Impact on the Supreme Judicial Court," recounts in detail Chief Justice Tauro's massive effort to create an Appeals Court. This relentless campaign began as soon as Chief Justice Tauro joined the Court. It included the drafting of the legislation, forming a favorable consensus among the Justices of the Supreme Judicial Court who had previously been divided on this issue, and enlisting the support of bar associations, law schools, the news media and many others. In spite of this prodigious effort, the Senate failed to act on a version of the bill which the House of Representatives passed in 1971. Consistent with his belief in never quitting, Chief Justice Tauro, with his customary dogged determination, repeated his extraordinary endeavor for a second year. After 22 months of unceasing effort, the bill finally passed and became effective on August 16, 1972.
Enactment of the bill prevented a major crisis from developing, as in the previous year the Supreme Judicial Court had produced 421 opinions, a 25% increase over the year before with an average number of opinions per justice -- 60 -- which was then twice the national average. Immediately, the appellate caseload dropped dramatically and the court was able to turn its attention to the exercise of its powers of rulemaking and general superintendence. For good reasons, the creation of the Appeals Court has been characterized as the most significant change in the organization of the Massachusetts Court system since the establishment of the Superior Court in 1859.
The second article In the 300th anniversary volume is titled "Procedural Reform in a Local Context: The Massachusetts Supreme Judicial Court and the Federal Rule Model." It concerns a four-decade-long, grueling campaign to bring about two fundamental changes in Massachusetts procedural law: first, to shift the primary power for rulemaking from the Legislature to the Supreme Judicial Court and, second, to substitute a modern system of rules based on the federal rules model for the antiquated code and common law system that had governed Massachusetts since the middle of the nineteenth century. The struggle began in the 1930's with a bitter and divisive dispute in the Massachusetts Legislature over attempts to follow the United States Supreme Court's adoption of the Federal Rules of Civil Procedure with federal style procedural rules in Massachusetts. The dispute continued without resolution from the 1930's through the 1940's and 1950's and into the 1960's. The article states as follows:
"What the movement needed was a person with the visibility, reputation and vision to rally professional and political support. That figure appeared on the scene in 1962 in the person of the new Chief Justice of the Superior Court, G. Joseph Tauro.
"Judge Tauro was not only familiar with Massachusetts politics, but he was also comfortable with different constituencies of the Massachusetts bar. During his thirty-three years as a practicing lawyer, he had worked outside of Boston and outside of the world of the downtown law firm. Moreover, he had been an active figure in the plaintiffs tort bar. In 1960, Judge Tauro served as President of the Massachusetts Trial Lawyers Association, a stronghold of the plaintiff's tort bar. These experiences gave him credibility with groups of lawyers who had traditionally been the strongest opponents of procedural reform.
"When Tauro assumed the position of Chief Justice, the Superior Court was struggling with yet another serious congestion problem. Tauro blamed the state's antiquated procedural system, and he decided to make the adoption of the federal rule model one of his principal goals as Chief Justice. As of 1962, Massachusetts still had not accepted many of the most significant innovations of the Federal Rules, including expansive pre-trial discovery, liberal pleading, broad summary judgment, streamlined appeals, and expansive joinder, as well as the merger of law and equity." [p.324]
Chief Justice Tauro was faced with the almost insurmountable problem of achieving the needed reforms in the face of a long history of failure. Rather than promote legislation authorizing general court rulemaking powers or a campaign for wholesale adoption of the Federal Rules, Chief Justice Tauro made a brilliant strategic decision. He would focus initially on only one small aspect of the federal rule model, oral depositions as a tool of pre-trial discovery. He concluded that the introduction of oral depositions would avoid surprise in litigation, increase the fairness of the trial process, facilitate settlements and reduce caseload congestion in the Superior Court. He also believed that success with oral discovery would be the foot-in-the-door for adoption of the remaining federal rule reforms.
For several years, Judge Tauro lay the groundwork for his campaign by gathering data from all over the country and convincing influential members of the bar and bar associations. Then in 1964, he launched his public campaign in a major address to the Massachusetts Bar Association which attracted considerable attention in newspapers and professional publications. Two months later legislation for oral discovery was filed. Once again the traditional opponents of the reform appeared. The bill passed the Senate by a narrow margin but was decisively defeated in the House.
Chief Justice Tauro refused to quit. The only practical alternative was to persuade the Supreme Judicial Court to adopt an oral discovery rule in spite of decades of legislative refusal to take such action. This route was pursued even though it could risk a serious confrontation with the Legislature which might have escalated into a constitutional crisis.
Finally, in 1965, the Supreme Judicial Court promulgated Rule 3:15 which enacted oral deposition and several other elements of federal discovery practice, without legislative authorization. This action marked a major turnabout in making the judicial branch an active supporter of procedural reform. Although legislation was filed by opponents to undo the reform, the bills never came to a vote and the much feared constitutional confrontation was avoided.
Once the new reforms were accepted and put into successful use by members of the bar, the struggle turned to adoption of the federal rules model. That struggle would continue until July 13, 1973, when the Supreme Judicial Court, under the leadership of Chief Justice G. Joseph Tauro, would adopt the Massachusetts Rules of Civil Procedure containing all of the changes Judge Tauro had wanted when he launched what had appeared to be a quixotic campaign eleven years earlier. Like the campaign for the Appeals Court, this reform has been hailed as one of the most significant in the history of Massachusetts jurisprudence.
The creation of the Appeals Court and procedural rules reforms were only two of many administrative changes during Judge Tauro's five years as Chief Justice of the Supreme Judicial Court. Through federal grants, he expanded the administrative staff of the Executive Secretary office, as the administrative office of the Court was then known. In order to make progress in the exercise of its general superintendence powers, the Court reactivated the Judicial Conference, with each justice assuming responsibility for a particular field of judicial administration. A Judicial Conference Subcommittee on Legislation was formed to review and state a unified position on all legislation affecting the courts. A special counsel was appointed to assist the handling of appellate cases. Along with the new civil rules, new Massachusetts Rules of Appellate Procedure were adopted. Retired Justice John V. Spalding was designated a special master to work on single justice cases. Regular full court sittings were held in September and the time for oral arguments was reduced in various cases. With the expert assistance of retired Justice R. Ammi Cutter, a system was established, by the creation of the Board of Bar Overseers and the Clients' Security Board, for handling complaints against members of the bar and compensating clients for losses caused by attorney misconduct. This system, which has become a model for other states, continues to be funded solely by bar admission fees and does not use revenues raised from taxation of the public.
While recognizing Chief Justice Tauro's great administrative achievements, it is important to emphasize the important role he played in the development of the common law. This role paralleled his administrative work in stressing the necessity for the judiciary to act as an independent branch of government, with out waiting passively for changes in the law initiated by the legislature. Shortly after his appointment to the Supreme Judicial Court in 1970, Chief Justice Tauro wrote a strong dissent in Lombardo v. D.F. Frangioso & Co., criticizing the Court's traditional practice of deferring to the legislature on changing the common law:
"When dealing with a rule of law originally established by judicial decision I believe that its change, when required, should come by means of a judicial decision. In these circumstances, I do not believe that we should look to the Legislature for change. To do so is a distortion of the concept of judicial review whereby the Legislature is invited, in effect, to reverse judicial decisions. If the courts are to assert and maintain their rightful independence and inherent powers within their proper sphere, they should not pass on to the Legislature the task of altering by statute the holdings of prior judicial decisions in nonstatutory matters. The mere passage of time does not shift the burden to the Legislature."1
In a four-to-three opinion, the Court had ruled that a wife was not entitled to recover for loss of consortium caused by the negligence of a third person injuring her husband. Two years later, Chief Justice Tauro's dissent became the rule in Massachusetts as the Court overruled the Lombardo case.2
In a concurring opinion written shortly after that dissent, the Chief Justice again attacked the Court's policy against revising its own decisions. He wrote, "... we cannot afford a slavish adherence to stare decisis nor can we leave unexplained and uncorrected such infrequent lapses from sound principles as all courts suffer in the course of case-by-case adjudication."3
In the decade following the appearance of these opinions and the creation of the Appeals Court in 1972, the Supreme Judicial Court produced an unprecedented number of landmark opinions making major changes in the common law. Many of these were written by the Chief Justice himself. Among his 254 opinions are to be found landmark decisions in torts, contracts, real property, corporations, governmental regulations, and environmental protection. Let me cite just a few examples, all of which are instantly recognizable to students of Massachusetts law. In Boston Hous. Auth. v. Hemingway, 365 Mass. 184 (1973), the Court ruled that the old common law treatment of a lease as a property conveyance had outlived its usefulness. The Chief Justice wrote:
"Therefore, we hold that in a rental of any premises for dwelling purposes, under a written or oral lease, for a specified time or at will, there is an implied warranty that the premises are fit for human occupation. . . . This warranty (in so far as it is based on the State Sanitary Code and local health regulations) cannot be waived by any provision in the lease or rental agreement." Id. at 199.
In Mounsey v. Ellard, 363 Mass. 693 (1973), the Court ruled that, contrary to the then prevailing common law rule, a police officer who went to a home to serve a summons could recover from the owner of the premises for injuries sustained in falling on ice if the owners were guilty of negligence in failing to use care in the maintenance of the premises. Speaking for the majority of the Court, Chief Justice Tauro wrote:
"It no longer makes sense to predicate the landowner's duty solely on the status of the injured party as either a licensee or invitee. Perhaps, in a rural society with sparse land settlements and large estates, it would have been unduly burdensome to obligate the owner to inspect and maintain distant holdings for a class of entrants who were using the property 'for their own convenience' . . . but the special immunity which the licensee rule affords landowners cannot be justified in an urban industrial society . . . . We can no longer follow this ancient and largely discredited common law distinction which favors the free use of property without due regard to the personal safety of those individuals who have heretofore been classified as licensees. The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant. . . .
"Therefore, we no longer follow the common law distinction between licensees and invitees and, instead, create a common duty of reasonable care which the occupier owes to all lawful visitors." Id. at 706-707.
In Sorenson v. Sorenson, 369 Mass. 350 (1975), Chief Justice Tauro, writing for a unanimous Court, overruled previous cases on the doctrine of parental immunity. He wrote:
"We believe that an absolute parental immunity to actions in negligence is not consistent with contemporary conditions and is no longer required by the necessities of modern family life. Accordingly, we hold that in a tort action for negligence (a) arising from an automobile accident and (b) brought by an unemancipated minor child against a parent, the doctrine of parental immunity is abrogated to the extent of the parent's automobile liability insurance coverage." Id. at 352-353.
"When insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child's medical care and support without depleting the family's other assets. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal -- the easing of family financial difficulties stemming from the child's injuries." Id. at 362-363.
It is staggering to contemplate the vast numbers of landlord-tenant and personal injury cases that have been governed by these humane and progressive rulings in the two decades since the three opinions were issued. But it was not just in the field of civil law that Chief Justice Tauro produced landmark opinions.
From the vast number of other opinions he wrote, it is appropriate to mention several other important cases. In one of his first cases on the Supreme Judicial Court, Chief Justice Tauro was confronted with a case that affected an extensive number of criminal cases but had been briefed as though it were a minor case of little importance. At his suggestion, the Court requested submission of an amicus curiae brief from the Attorney General. Some months later, a magisterial brief written by John J. Irwin and Ruth I. Abrams, who are now respectively the Chief Justice for Administration and Management of the Trial Court and Associate Justice of the Supreme Judicial Court, was filed. Thereafter, Chief Justice Tauro issued a landmark opinion, Commonwealth v. Brandano, 359 Mass. 332 (1971), which established procedures for dismissal of criminal cases prior to trial.
In the two 1975 opinions on capital punishment in Commonwealth v. O'Neal, 367 Mass. 440, and 369 Mass. 242, Chief Justice Tauro wrote the lead opinions as a divided court ruled that a mandatory death penalty statute violated the Declaration of Rights of the Massachusetts Constitution. In the first O'Neal case he wrote:
"We believe that the right to life is fundamental and, further, that this proposition is not open to serious debate . . . . Aside from its prominent place in the due process clause itself, the right to life is the basis of all other rights and in the absence of life other rights do not exist. . . . It encompasses, in a sense, 'the right to have rights,'. . . and when it is taken, '[t]here is no redemption for the individual whom the law touches.'. . . A denial of this fundamental concept would be tantamount to a denial of human existence. As such, we hold that life is a constitutionally protected fundamental right, the infringement upon which triggers strict scrutiny under the compelling State interest and least restrictive means test. Thus, in order for the State to allow the taking of life by legislative mandate, it must demonstrate that such action is the least restrictive means toward furtherance of a compelling governmental end." Id. at 449-450.
In 1975, Chief Justice Tauro wrote an opinion for a unanimous Court which created a nationwide storm of controversy. The case, In the Matter of Alger Hiss, 368 Mass. 447 (1975), stirred up old passions related to the legacy of the McCarthy era and the President of the United States who had been a chief prosecutor of Alger Hiss. The Court ruled that, despite his conviction for perjury in 1950 and the fact that after a quarter of a century he continued to claim his innocence, Alger Hiss was fit to be reinstated as a member of the Massachusetts bar. Chief Justice Tauro wrote:
"Mere words of repentance are easily uttered and just as easily forgotten. "The continued assertion of innocence in the face of a prior conviction does not, as might be argued, constitute conclusive proof of lack of the necessary moral character to merit reinstatement." Id. at 457.
Whether he was instituting fundamental changes in court administration or urging the Supreme Judicial Court to take the lead in reforming outmoded common law principles, a fundamental theme of G. Joseph Tauro's career is the importance of judicial independence as an essential element of constitutional government. Therefore, it is appropriate that the final opinion I mention is O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972). The case involved a seemingly trivial matter -- a retail appliance store trying to collect from a county treasurer $86 for a tape recorder and tapes which were purchased by a Superior Court judge to prevent the temporary closing of a criminal session when no stenographer was available. From this fact situation, which involves a claim appropriate for disposition in a small claims session, Chief Justice Tauro fashioned one of the most important opinions in Massachusetts history on the inherent powers of the courts.
In upholding the claim of the retail store, Chief Justice Tauro declared the inherent power of a court to bind the government to pay for expenses reasonably necessary for the operation of the courts. The Chief Justice wrote:
"It is axiomatic that, as an independent department of government, the judiciary must have adequate and sufficient resources to ensure the proper operation of the courts. It would be illogical to interpret the Constitution as creating a judicial department with awesome powers over the life, liberty, and property of every citizen while, at the same time, denying to the judges authority to determine the basic needs of their courts as to equipment, facilities and supporting personnel. Such authority must be vested in the judiciary if the courts are to provide justice, and the people are to be secure in their rights, under the Constitution.
"We hold, therefore, that among the inherent powers possessed by every judge is the power to protect his court from impairment resulting from inadequate facilities or a lack of supplies or supporting personnel. To correct such an impairment, a judge may, even in the absence of a clearly applicable statute, obtain the required goods or services by appropriate means, including arranging himself for their purchase and ordering the responsible executive official to make repayment." Id. at 510.
Although forced to retire from the bench in 1976 upon reaching the age of seventy, G. Joseph Tauro did not go gently into that good night. For more than a decade preceding his retirement, Judge Tauro had promoted the need to establish a broad based nonpartisan commission on the needs of the courts. Thus, it was entirely appropriate that as soon as he retired from the bench Governor Michael Dukakis appointed him to the Governor's Select Committee on Judicial Needs. The Report of the Committee, which was chaired by Professor Archibald Cox, would result in one of the most substantial court reforms in the history of the Massachusetts courts. The 1978 Court Reorganization Act would enact many of the basic reforms Judge Tauro had long promoted.
In addition to his membership on the Select Committee, Judge Tauro was appointed a professor at Boston University School of Law where he was able to promote his ideas for revised law school education, a subject to which he had devoted his entire sixth Annual Report to the Bar in 1969. Many of the proposals in that report, including establishment of judicial internship programs and greater use of audio-visual aids, were eventually adopted by the law schools.
Taking advantage of a proposal he had favored for many years and which was enacted as part of the 1978 Court Reorganization Act, Judge Tauro in 1979 returned to the Superior Court as a recalled retired judge. He was assigned to the Essex County Superior Court criminal session until his involvement with a project at Boston University School of Law caused him to leave the bench.
He died on October 6, 1994, at the age of 88. He is survived by his wife of 64 years, Helen M. (Petrossi) Tauro, his son Joseph L. Tauro, who is Chief Judge of the United States District Court of the District of Massachusetts, two brothers, Arthur and Raymond, a sister, Celia Tricca, three grandchildren, Joseph L. Tauro, Jr., Christopher M. Tauro, and Elizabeth Saunders, and a great granddaughter, Amanda Rachel Saunders.
He took great pride in the achievements of his only child, Joseph. He used to like to tell the story of the day he was stopped by the Marblehead police for exceeding the speed limit. As was his custom as to all non-court business, he refrained from identifying himself as chief justice in order to avoid the appearance of seeking special treatment. The police officer looked at him and asked, "Aren't you Judge Tauro's father?"
In his opinion in the second O'Neal case, in which he concluded that the death penalty was unconstitutional, he defined what he considered to be the duties of a judge:
"The great responsibility, of a judge is to exercise his best judgment in applying his interpretation of the law to the facts. No judge should ever be concerned with whether his decision will be popular or unpopular. He does his job always with complete awareness that the political considerations of the day, contemporary public emotions (no matter what their motivation), and personal philosophies are completely foreign and irrelevant to the exercise of his judicial power. This is the very essence of judicial duty -- no less should be given and no more should be required."
As a sitting judge, he lived up to the very letter of what he perceived as a "priesthood" of the judiciary. As a court administrator he was without equal. In the words of Chief Justice Hennessey, it can truly be stated, "No person in your time or mine has done so much effective work for the administration of justice in Massachusetts."
On behalf of the bar of the Commonwealth, I respectfully move that this memorial be spread on the records of this Court.
Gael Mahony, Esquire, addressed the court as follows:
A tribute that does full justice to the accomplishments of G. Joseph Tauro is a formidable task. The emphasis appropriately should be on his extraordinary service as a judge, in particular his service as Chief Justice of this Court. But there is much more to the story, if the full story of Chief Justice Tauro is told. There is the story of the Tauro family, where the values took root that inspired the Chief Justice's public life, and which were passed on by him to his son and grandchildren, where they are alive and well today. There is the story of his career as a practicing lawyer, where the skills were forged that he was later to use so effectively as a judge and Chief Justice. Those are the subjects on which I will speak. Knowing the Tauro family, I know the family history. It is a wonderful story, which I will share with you. Speaking also as a representative of the bar, 1 will try to recapture some of the highlights of the Chief Justice's wide-ranging and impressive career as a practicing lawyer.
The Tauro family history is one of the great only-in-America stories. The Chief Justice's parents were Italian immigrants. What they brought to this country was native ability - and courage - and very little else. The Chief Justice's father was a cobbler, and the Chief Justice was one of six children. There were few material resources, and life was a struggle, but never a hardship. They loved each other, and they helped each other. The children were taught the virtues of hard work and self-discipline, and the paramount importance of education. They were also taught compassion. In the words of Arthur Tauro, the Chief Justice's brother, who was quoting their father, "The rewards of human kindness always outweigh the rewards of personal gain." What that immigrant couple were able to achieve is wonderful to behold. From their children have come two doctors, graduates of the Boston University School of Medicine, and a lawyer, graduate of the Boston University School of Law. The lawyer son became Chief Justice of the Superior Court, and then Chief Justice of the Supreme Judicial Court -- the only person in the history of the Commonwealth to hold both of those offices. And what a legacy he has left behind! He was a leader, in every sense of the word, in the profound changes in the body of our state law, and in our court system, that occurred, or began, during his years as a judge. He has left a living legacy as well, present here in this courtroom. With us today is the Chief Justice's son, who is Chief Judge of the Federal District Court for the District of Massachusetts, and renowned for his leadership of what must be one of the most collegial trial courts in the country. With us are the Chief Justice's three grandchildren -- Joseph, Jr., a gifted and enterprising executive chef; Elizabeth, an accomplished business lawyer and Associate General Counsel of Arthur D. Little; and Christopher, an Assistant District Attorney for Norfolk County, and very able trial lawyer. The family tradition continues, as strong as ever. The values implanted by the immigrant couple, that bore such rich fruit in the life of the Chief Justice, are flourishing still, in the generations that have followed him.
The Chief Justice's career prior to his judgeship is another wonderful story. His pre-judicial career, like his upbringing, conditioned him for what he was to accomplish when he ascended the bench. The Chief Justice was appointed an Associate Justice of the Superior Court in 1961. Before that appointment, he had spent 34 years in private law practice, working from his office in Lynn, the city where he had been born and raised. His law practice was concentrated principally in Essex County, although not infrequently he had cases in other counties and in the federal court. He was primarily a trial lawyer, and one of the very best. He also had an active general practice, representing individuals and businesses in a wide variety of matters. It was a busy, successful, stimulating practice, built by his painstaking efforts, and by the trust and confidence that he earned in the community. The qualities that made the Chief Justice such a good lawyer are very familiar to the readers of his opinions as Chief Justice. He was meticulous in his preparation of cases; he left nothing to chance. He had a gift for creative insights that put new perspectives on a case. He had a clear mind, that sorted through irrelevancies and focused on what was the real issue. In the midst of a difficult trial, when decisions had to be made about handling a witness or responding to the trial judge, he had an uncanny instinct for knowing the right thing to do. And he never gave up. As long as the Chief Justice believed that an injustice was being done, he could outlast anybody.
The years of private practice were followed by nine years of service on the Superior Court -- the last eight of which, as Chief Justice of that court. Those years were a very productive part of the Chief Justice's life, and a further preparation for his service on this court. He was widely recognized as an excellent trial judge -- attentive, courteous, wise. Presiding over trials added a new dimension to what the Chief Justice had observed about the court system as a practice lawyer. With the benefit of both viewpoints, he was able to identify the major shortcomings in the system; and he set about, characteristically, in his practical, determined and enormously effective way, to accomplish change. And what a change it was! Very largely through his efforts, our state courts moved from their outmoded rules of practice to a system of oral discovery, and then to entirely new rules of procedure based on the federal system. Very largely through his efforts, the legislation was passed that created the Appeals Court and thereby permitted this court to concentrate its energies on the cases that are most important. The Chief Justice's leadership in bringing about those changes was a long-term, extraordinarily intensive effort. What inspired that effort -- and what, perhaps, was the Chief Justice's most noble quality -- was his passionate belief in our system of justice, and his fierce determination to make that system as good as it possibly can be.
The Chief Justice's talents and energy brought him ultimately to this court, to which he was appointed as Chief Justice in 1970. That year ushered in what Justice Kaplan has described as one of the two periods of "dynamic decisional growth" in the court's 300-year history. Traditional doctrines were reexamined; critical constitutional issues were confronted; new statutory schemes were analyzed and applied. In a broad diversity of cases, carefully reasoned, ground-breaking opinions were handed down, that sent a powerful signal of the vitality and growth potential of state law. In the forefront of that remarkable era, as leader of the court and author of many of its most important opinions, was Chief Justice Tauro. His work product on this Court is a testimonial, not only to his industry and ability, but to something more. Underlying the Chief Justice's professional skills was a quality of essential kindness, that shines through in his judicial opinions. He had a grand and magnanimous view of what the law should be. What he set out to do -- in his patient, modest but determined manner -- was to cause the law to evolve in such a way as to treat ordinary people fairly.
He was a wonderful man. In the long history of this great Court, with its roster of distinguished Justices, he is truly one of the stars. As we assemble here today, a year after his death, it is fitting that we recall the contribution that he made as judge and Chief Justice, and the standard that he set for those who will follow. On the occasion of Queen Victoria's Golden Jubilee, the poet A.E. Housman addressed these words to his countrymen: "Get you the sons your fathers got, and God will save the Queen." If we can raise up other men -- and women -- in the mold of Chief Justice Tauro, then God will save the Commonwealth of Massachusetts.
Valerie C. Epps, Esquire, addressed the court as follows:
My remarks about Chief Justice Tauro are going to focus on the way he interacted with his law clerks, for it was in that capacity that I was privileged to know him.
Somehow while studying at law school, students pick up the knowledge that it's a good thing to become a law clerk to a judge in the year following graduation. Some schools put on information panels and invite graduates back to reveal the secrets of their clerkship experience and to urge others to follow in their steps. In any event, droves of law students send out a myriad of applications for clerkships, and a few receive offers. I was one of the lucky ones to be invited for an interview at the Supreme Judicial Court. I remember distinctly walking into Justice Tauro's office to be interviewed for one of his clerkship positions. I can see him sitting there, his white hair gleaming and his avuncular presence beaming forth. One of his obituaries described him as a "short, compact man with dark brown eyes, a brush mustache and wavy, snowy white hair" (Boston Globe, October 7, 1994) and so he was.
I was not the first female clerkship applicant to the court, but back in the early 1970's women were still somewhat of an oddity in that grand inner sanctum. Justice Tauro did not treat me as an oddity. I remember chatting somewhat stiltedly to "the Chief," as we later came to call him, and within a minute or two his telling me that I had the job if I wanted it and would I please let him know within three days. To say I was stunned was an understatement. That speed of decision, no messing about, get right on with it, was a marked characteristic of the Chief. Looking back on that day now, twenty-four years ago, I have a sense that neither of us quite knew what to make of the other and despite his sometimes outward bluster there was a sweetness of disposition and an awed humility about him that was winsome. He always behaved as if he were hugely conscious of the great honor bestowed on him when he became Chief Justice and as if, in his deepest heart, he couldn't quite believe it. In those days the Chief Justice had two law clerks and everyone else had one law clerk. Having a colleague to go over every legal issue proved to be invaluable. Peter Aranella, who is now a professor at UCLA Law School and has recently been seen almost every evening on national television commenting on the Simpson trial, was my co-clerk that year. The dynamics between the Chief, Peter, and me are worth commenting on because they reveal the extreme, kindly tolerance and affection which the Chief bestowed on us.
Peter and I quickly learned that it is the Chief who assigns the cases. We saw this as the route to getting all interesting cases assigned to the Chief so that we could work on them. We persuaded the Chief to let us screen all the cases and pick out the ones we thought he should assign to himself. He said we could go ahead with our screening but that he would have to take into account certain other judges' expertise in particular areas and that he needed to be fairly even handed in his assignments or it would cause rancor on the Court. Peter and I undertook our screening with a vigor only known to the young and inexperienced. We would present the Chief with synopses of all the cases and indicate which ones we thought of greater importance (such is the assured confidence of youth). The Chief was patient with us and would sometimes heed us and sometimes not.
It is well known that some judges allow their clerks a broad scope of research and writing activity and that there are others who relegate their clerks to little more than cite checking functionaries. The Chief hit a happy medium. He certainly wanted all citations checked (and those were the days when we still relied on Shepard's) but at the same time be always had a strong sense of how he wanted his opinion to come out and there was never even the remotest possibility of his being brow-beaten by his over eager clerks.
Justice Tauro delighted in hinting to us of the rigors of his upbringing, though I always sensed a great respect for his hardworking immigrant parents. He was proud of his achievements against the odds but he never turned his back on others who were struggling. He took a mischievous delight in flaunting his Italian-American background among the bastions of Brahminism. I remember that he took Peter and me to lunch at the Union Club. On the way he explained that "they had to invite me to join because they always invite all the SJC Justices." He chuckled with delight at what he knew must have been the membership committee's chagrin.
Peter and the Chief had a special relationship. The Chief was so delighted that another Italian-American should have done so well and at Harvard Law School. He understood and enjoyed Peter's passion about prisoner's rights but he had seen more of the world than either of us and often told us that he was not about to author opinions that would result in hardened criminals being released into society because of some minor technical flaw at the trial. But he bent over backwards to let us argue our points to him. I even remember one case on which he found himself clearly on one side of the issue while we were just as clearly on the other. He allowed us to draft a memorandum on the side opposing his opinion and he promised us that he would read both his opinion and our contrary draft in the semble and if the vote went our way he would let that be the result. We didn't win the vote, but the fairness of his approach and his willingness to give us a voice made a deep impression. Many, if not most judges would simply have told their clerks on which side the drafts had to come down and would not even have considered making any representations of opposing views.
The Chief sometimes had to admonish us for our too voluble argumentation in the clerks' office, which at that time was at the back of the Social Law Library. This he did with a stern, sweet reasonableness. I seldom shout and am not by nature a screamer. I dare say Peter Aranella would describe himself in the same terms. Somehow the dynamics between Peter and me were such that we both spent a fair amount of time shouting at each other -- always about legal issues -- but always with that unrestrained argumentation that law professors like to encourage in their students. Mr. Bellefontaine, the long suffering Social Law Librarian, frequently had to ask us to be quiet. We must have driven our fellow law clerks and the library patrons mad. I don't know how much of our antics reached the Chief's ears but he only occasionally mentioned that we should talk less and research and write more.
The Chief's overall message to his clerks was always encouraging. He encouraged us to sit in on the arguments before the Court and he was pleased to hear our pronouncements on the skill or effectiveness of counsel's arguments. Ah, how sure of ourselves we were, but the Chief never dampened our ardor but soberly hinted that we might begin to temper our remarks once we had tried a few arguments in the courts ourselves. During our clerkships how he had taken on court reform with a passion. He never complained of the work load to us though it must have been heavy. We were only distantly aware of this load because he always found time for us and for, what must have been, our very minor issues in the larger scheme of things.
The Chief was also concerned about our future careers. Peter and I both stated boldly that we wished to teach law but the Chief wanted us to interview with some downtown law firms before we made up our minds. Peter's interest was already fixed on criminal law and he wanted to be a public defender before he entered the academic world. Reluctantly, and really only to please the Chief, we agreed to go for some interviews with major Boston firms. In those halcyon days the large firms invited the SJC clerks to interview with them even in the absence of an application. We dutifully went off to our interviews and then wrote or telephoned to say that upon mature consideration we did not wish to be considered for a position. There is no doubt that the Chief was disappointed that we did not go to work for the major firms. He knew that his recommendation held weight with firms that decades before, when the Chief had graduated from law school, would not have considered his own application. Perhaps it was this inability to use his influence on our behalf, in those particular circumstances, that frustrated him. In any event, he was more than generous in his letters of recommendation to our future employers despite his disappointment. Having served as a clerk to Chief Justice Tauro opened many doors for us that would otherwise have remained closed. Actually the Chief's disappointment revealed the extent to which he took our welfare to heart. A less generous man would not have spent his emotional energy on two opinionated neophytes. It was so characteristic of the Chief that he cared about all of us who worked for him, which meant of course that all of us held him in great affection. He is sadly missed and we, who were fortunate enough to work under his guidance, miss him still.
Retired Chief Justice Edward F. Hennessey, speaking for the court at the request of Chief Justice Liacos, responded as follows:
I come here today as an expert on the career and character of Chief Justice G. Joseph Tauro. I qualify as an expert because I observed him at every phase of his professional career. I saw him when he was a trial lawyer and later when he was a trial judge, and I served on the bench as his colleague when he was Chief Justice of the Superior Court and later as Chief Justice of the Supreme Judicial Court.
In the 'fifties and very early in the 'sixties, I witnessed his extraordinary competence as a trial lawyer. He was one of several very talented trial counsel of that time. I equate him with his contemporaries: Claude Cross, Arthur Bickford, Robert Meserve, Thomas Mahony, J. Newton Esdaile, William Callahan, Roger Coulter, and some others. I appreciate that I am looking back at them through the rosy gauze of four decades. Nevertheless, this I know: they, lawyer Tauro among them, did their court business skillfully, briskly, and crisply, and with total respect for the court and each other. They could say to us, as the barristers of an earlier time said, in the words of an old song:
"You can never be like us,
But be as like as us as you can."
My law partner and I, with high hopes, tried one jury case against Brother Tauro in the late fifties. In the vernacular of today, he handed us our lunch, skillfully, briskly, crisply, and with total civility.
Then he was appointed a justice of the Superior Court, and soon thereafter as Chief Justice of that court. He most often sat in Boston in the First Criminal Session. On several occasions, I waited in that session, as I represented accused clients. I saw his firmness, his unfailing courtesy and even- handedness. In that session, he sent out cases to the trial sessions, or he would accept pleas of guilty. He did a brisk business on guilty pleas, as prosecution and defense often reached agreements. This was a large compliment to him, as counsel often chose to leave the disposition to him, rather than to report ready for trial in order to get out to a trial session.
He sat many successive months of each year in that First Criminal Session. Some years later when I served as a judge for two consecutive months in that stressful slot, I came to appreciate his strength and endurance.
He arrived as Chief Justice in the trial court just about the time when some people began to recognize that we were in the midst of an explosion of litigation. From the beginning he sought to instill a sense of urgency. He was dogged and persistent in his confrontation of delays in the courts. He obviously agreed with Chief Justice Vanderbilt of New Jersey that reform of court procedures "is not for the shortwinded."
He also, I found out years later, adopted the credo that a competent chief justice cannot be everybody's "Mister Popularity." For example, he suspected that a few judges were perhaps occasionally leaving their trial sessions early. He regularly scheduled telephone calls around the state to the suspects, always at or about four in the afternoon. His message was simply, "Hello, how are you doing?", or the like. At the annual dinner of the judges, one of the judges, obviously part of a conspiracy, sang several spirited verses of a song, with the repeated refrain:
Has the Chief called you today?"
The Chief enjoyed it, I suspect mostly because he knew he had made his point.
In the same vein, about the same time, he told his judges, in words some of us never forgot, "No judge has the privilege of painting a Mona Lisa in his chambers while a thousand litigants wait in the corridors." His emphasis was, not to abandon quality, but to insist on both quality and expedition.
After eight years as Chief of the Superior Court, he was appointed Chief Justice of the Supreme Judicial Court. His appointment was a challenge, for he succeeded Chief Justice Raymond S. Wilkins, who had the respect of the bar and of the chief justices of the fifty states and several territories.
We know, from the results during the next six years, that he led his colleagues of this court on two tracks. His years as a trial lawyer and a trial judge had shown him both the administrative problems of the courts, and some of the deficiencies of our common law.
The Chief's past experience with the legislative and executive branches taught him the "art of the possible," and he brought this skill to bear in procuring legislative help for the administration of the courts. In recent years, many people, most especially the chief judges of this court, have worked hard and well toward the goal of speedy and efficient administration of the Massachusetts courts, all in accordance with the highest standards of justice. At the same time, it is not pleasant to imagine the public state of things today except for the substantial efforts and results achieved by Judge Tauro. Just three decades ago ours was a primitive judicial system in Massachusetts.
For but a few examples, Chief Justice Tauro's innovative and persistent leadership led to the adoption of rules allowing oral discovery in civil cases, the foundation for later total revisions of the rules of civil and criminal procedures in the Massachusetts courts. He was determined to model the rules on the best parts of the Federal rules, and he succeeded. He led the good work for the establishment of a principle, which does not exist in many other states, that the procedural rules are for the courts and not the Legislature. He, with the expert assistance of retired Justice Ammi Cutter, led the Supreme Judicial Court to establish the system which combines the Board of Bar Overseers and the Clients' Security Fund. These have been a respected model for the establishment of similar systems in other states. He was a leader in the successful movement of 1976-1977 for legislation to reorganize the Massachusetts courts.
Aware of the intolerable caseloads of the Supreme Judicial Court, Chief Justice Tauro advocated the establishment of the intermediate appellate court. After two years of prodigious effort on his part, and with the cooperation of the organized bar, and with his persuasion of the Governor and Legislature, the Appeals Court was established as the Commonwealth's intermediate appellate court -- the most significant change in the organization of the Massachusetts court system since the establishment of the Superior Court in 1859.
In all of these administrative reforms, the Chief worked against, and overcame, formidable opposition in the Legislature, some "public interest" groups, and some segments of the bar.
While recognizing all of his ability and achievement as an innovative administrator, we must not forget that Judge Tauro's principal dedication was to the common law. He and his colleagues directed their energies toward the civil law of the Commonwealth. He wrote many decisions which can only be properly described as "landmarks" in a wide variety of fields -- contracts, torts, real property, corporations, governmental regulations, environmental protection, and the inherent powers of the courts.
With all his accomplishments, the Chief had good control of his ego. His goal in pursuit of better justice clearly was like that of Justice Holmes, who enjoined himself, " . . . to hammer as compact and solid a piece of work as one can, to try to make it first rate, and to leave it unadvertised." The Chief was quiet, except for a few occasions when he decided that he, or the courts, were being treated unfairly. Then, as a few chagrined people were surprised to find, his response was spirited and forceful.
In 1982 in this courtroom we spoke of some of the things which another judge of this court (Justice Paul G. Kirk) lived by. They are a good fit with the ideals, the style, and the service of Chief Justice Tauro:
"The administration of justice is a fine art, and the lawyers and many others are its generators, but the efforts of all can reach no higher than the personality of the judge permits. Perfection, if the judge seeks it, requires knowledge of the law; diligence and efficiency; unfailing courtesy without sacrifice of firmness and decisiveness; evenhandedness, while retaining a jealous regard for the individuality of every person; restraint, eternal restraint, particularly as to both the quality and the quantity of speech; courage and strength in the face of criticism. Above all, integrity in all of its nuances. In a sense, the system is self-perpetuating, because the judge who reaches for these goals has, by example, a part in the decisions which inspire some men and women of excellence and ideals to become judges, and they inspire others in their turn to the next generation and the next and the next.
"In searching for perfect justice, we seek the impossible, but the search is worth our total efforts. What we in the courts do, and how we do it, is seen not only by the litigants before us, but by the entire community. The stakes are high. Our performance will help to determine whether constitutional principles are nourished and whether human rights are advanced."
Chief Justice Tauro has our affection and our deep respect. In concluding this tribute to him, I cannot think of any more appropriate words than those I included in my acceptance speech when I succeeded him as Chief Justice of the Supreme Judicial Court on January 28, 1976:
"It is my honor to follow him in office. He has left memorable tracks in fifteen years of judicial service. He has also left valuable sign posts for the future. . . . Let me leave my tribute to Chief Justice Tauro with this superlative: No person in your time or mine has done more effective work for the administration of justice in Massachusetts."
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