82 Mass. App. Ct. 1125

Memorial

A special sitting of the Appeals Court was held at Boston on November 20, 2012, at which a Memorial to the late Justice Gerald Gillerman was presented.

Present: Chief Justice Rapoza; Justices Cypher, Grasso, Kantrowitz, Kafker, Cohen, Green, Katzmann, Meade, Sikora, Hanlon, Carhart, Agnes, and Sullivan; Supreme Judicial Court Chief Justice Ireland; Supreme Judicial Court Justices Gants and Duffly; retired Appeals Court Chief Justice Christopher J. Armstrong; and retired Appeals Court Justices Rudolph Kass, Raya S. Dreben, Mel L. Greenberg, Kenneth Laurence, and David A. Mills.

Martha Coakley, Attorney General, addressed the court as follows:

May it please the court: As the Attorney General of the Commonwealth of Massachusetts, it is my honor to present, on behalf of the bar of this Commonwealth, a memorial and tribute to the late Gerald Gillerman.

Appointed by Governor Michael Dukakis in 1990, Gerald Gillerman sat as an Associate Justice of the Appeals Court for four years, when he reached the constitutional retirement age of seventy. He was immediately recalled and served for a further eight years.

Justice Gillerman dedicated himself to public service and the law throughout his life. That service began in classic "Greatest Generation" style when he was still a young man. Friends relate that he was in the Brookline High School auditorium when he learned that hostilities had broken out in what would become known as World War II. He stood up, left the auditorium, and went immediately to his local enlistment office. He was assigned to the Second Battalion of the Twenty-second Infantry and fought in France. He was seriously wounded in combat, losing a portion of his leg and earning the Purple Heart. Honorably discharged at the rank of staff sergeant, he returned home on a hospital ship. Justice Gillerman later described his state of mind, and that of his fellow wounded soldiers on that ship: "We had survived, and now we knew what was important and what was trivial. We would never cease to appreciate life; we knew it was a treasure."

A sign of Justice Gillerman's interest in the rights of those wounded in the war was his testimony before Congress in 1946. Staff Sergeant Gillerman of Brookline, Massachusetts, who said that he spoke for between 16,000 and 30,000 amputees throughout the country, told Congress that cars would be a tremendous help in the rehabilitation of handicapped veterans. "The Government has given us mechanical appliances, but they are not sufficient to rehabilitate us to the degree of mobility we think necessary," he said. "We need a further mechanical appliance, and that's what we're asking for now." He and another staff sergeant asked for approval of a bill which would authorize the government to spend up to $1,500 each for automobiles for amputees, or to give the veteran cash to buy a car of his choice.

What was then important to Justice Gillerman was college. As he later wrote, "I had to get into college. I had to test every new and old belief." He did just that, and was graduated from Harvard College in 1949, cum laude, and from Harvard Law School in 1952.

He then embarked on a long and successful career in private practice, eventually becoming a partner at what would become Widett, Slater and Goldman. His particular brand of thoughtfulness, of seriousness -- born of his experience in the war –- characterized him throughout his professional life. As Chief Justice Margaret H. Marshall recently put it, "Gerry never trafficked in gossip, nor did he waste his time talking about the weather. He was too interested in ideas, ideas about everything, but primarily about the law." Former colleague and friend Richard Goldman had similar memories, stating that Justice Gillerman "was devoted to the law and helping others, including the younger associates, his colleagues, the charities he supported, and the community organizations with which he was affiliated." That devotion to the law was reflected in his teaching at New England School of Law and his active involvement in both the Boston Bar Association and the American Law Institute. His commitment to charity was reflected in his service as trustee and as a member of the board of directors of Beth Israel Deaconess Medical Center.

Despite his seriousness, however, Justice Gillerman certainly knew how to laugh. His daughter, Hope, recalled a family outing to a drive-in to see the 1966 Carl Reiner movie, "The Russians Are Coming, The Russians Are Coming." Justice Gillerman laughed so hard "he had to step out of the car." And his war wound did not keep him from handily defeating opponents on the squash court.

During his time on the bench, Justice Gillerman authored 891 cases, 246 of which were published opinions. As the Boston Globe noted, he was known for his conciseness. Again, Chief Justice Marshall recalled: "Devoid of rhetorical flourishes or tiresome legalese, he wrote so that everyone could understand his opinions: judges, lawyers, and most important, untrained litigants. . . Gerry saw his role as teaching about the law, to which he devoted much of his extraordinary life." He had a particular genius for opening sentences, quickly and firmly placing the reader in the thick of the most relevant facts:

"On June 5th, 1994, there was a confrontation involving guns between the defendant and Ludwin Midence (known as 'Chino') at the Carter Playground in the South End of Boston."

"On January 13, 1992, Linda Dralau's hand was caught and injured in the rollers of a flatboard wrapper machine."

"At nine seconds after 6:00 P.M. on February 15, 1996, a fire alarm operator received a computer read-out from the Boston Police Department requesting fire department assistance at 110 Blue Hill Avenue, the location of a retail dry cleaning business owned and operated by defendants."

As Chief Justice Marshall noted, Justice Gillerman "was curious, focused, probing, and insightful, a true Renaissance thinker." These attributes served him well during what he called "the most exhilarating professional week" of his life. A brief conversation at a Harvard Law School event led to an invitation to Arusha, Tanzania, to observe the International War Crimes Tribunal of Rwanda. At the time, the Tribunal was considering the case of a Rwandan leader, who had been charged with genocide stemming from the slaughter of ethnic Tutsis in the Rwandan Civil War. There were procedural problems with the charges and the defendant argued that he should go free and avoid a trial. Peter Rosenblum, associate director of the Human Rights Program at Harvard Law School, praised Justice Gillerman's involvement, stating that he made "a genuine contribution at what was really a very delicate moment." The defendant was eventually tried and convicted of genocide, extermination, and other crimes against humanity.

Although he was dedicated to it, Justice Gillerman's life did not just revolve around the law. He loved birds and the opera. And, of course, he was devoted to his family. His wife, Dorothy, and son, David, are here today. His children are David, Hope, John and Ellen; and his grandchildren are Julia, Roland, Adrian, Aaron, Sophia and Georgina.

On behalf of the Commonwealth, I respectfully move that this memorial be spread on the records of the Appeals Court.

Paul Scapicchio addressed the court as follows:

Chief Justice Rapoza, members of the court, my name is Paul Scapicchio. I am a former law clerk for Judge Gerald Gillerman. I am also appearing today as a member of the bar to say a few words in commemoration of Judge Gillerman.

Gerry Gillerman was a member of the "Greatest Generation." Like many of that generation, he was fearless in the face of adversity, though humble in all the other facets of his life. He fought in World War II, was injured, lost a portion of his leg on a battle field in Alsace, France, came back, and carried on with his life. "We had survived, and now we knew what was important and what was trivial," said the judge. "We would never forget what we had learned. We would never cease to appreciate life; we knew it was a treasure."

Thereafter, Gerry Gillerman always knew what was important and was never afraid to fight for what he believed in. A year after losing his leg, he testified before Congress on behalf of a bill that provided money so every World War II amputee could buy and customize a car. He applied to and was accepted to Harvard University, got married, had a family, and embarked on a distinguished law career. In the decades that followed, he was an avid cyclist, and for years he played squash at a very high level.

I served as a clerk for Judge Gillerman from 1995 through 1996. We came from very different backgrounds and held very different beliefs. I had biases and beliefs forged in my experiences as a public school student during Boston's court-ordered busing desegregation. Judge Gillerman's views were forged elsewhere and informed his sympathy towards the underserved and disadvantaged.

While we were different people, Gerry Gillerman saw his role as teaching about the law. He encouraged disagreement if you came prepared to back up your arguments. He did not always come down on your side, but he respected your view and your ability to make your case and to back it up with facts.

Judge Gillerman and I disagreed often and many times came to different conclusions after analyzing the same fact pattern. In every instance, Judge Gillerman listened to what I had to say, and pondered the interpretation I had arrived at. He challenged me and questioned my reasoning exhaustively, but allowed me to try to persuade him to my point of view.

We argued for weeks about the St. Patrick's Day parade in South Boston and whether or not gays should be allowed to participate. We similarly debated jury selection in the Soares case (Commonwealth v. Soares, 377 Mass. 461 [1979]) and how it informed so much of our case law decades later. I learned much from those debates.

When I left the court after serving under Gerald Gillerman, I was a far better lawyer than when I had entered the courthouse a year earlier. I could make my case, but I could now also see other sides to arguments that I may have been blind to not so long before.

I was also now a member of a very special group. For once you clerked for Judge Gillerman, you became part of his extended family, and he took great pride in your accomplishments and relished the opportunity to help you move forward and improve your stock in life. Judge Gillerman kept in touch with me and all of his clerks. He wrote notes, he convened luncheons to see what we were up to, and he generally took an interest in our lives.

When I ran for a seat on the Boston City Council several years after leaving the Appeals Court, Judge Gillerman was there to offer encouragement and to tell me he thought I would do an excellent job if elected. When I won, he was the first to send me a note congratulating me. In 2000, I applied for the Master's Degree at the Harvard Kennedy School, and Judge Gillerman wrote one of my recommendations. As in the case of his opinions, it was devoid of fluff, and systematic in laying out the case for my being an ideal candidate for admittance. It undoubtedly helped my candidacy.

I will leave with one story that sums up Gerry Gillerman for me. It came from former Massachusetts Governor Bill Weld, who recently joined my law firm. When I told him that I was coming here today to say a few words about Judge Gillerman, he said, "I knew Gerry Gillerman well. We played squash years ago and he beat me regularly. At first I didn't even know he had a wooden leg, I just knew him as the guy who wore long pants to play squash." According to Governor Weld, Judge Gillerman placed himself in the middle of the court and controlled the match using his long reach and wits. For me, it is emblematic of who Gerry Gillerman was. He was never one to make excuses or to plead for an accommodation. He was doggedly determined, and he was going to compete with you and challenge you completely. He did it in squash, he did it at work, and he did it in life.

Thank you all for allowing me to say a few words today and thank you to the Gillerman family.

Elise Busny addressed the court as follows:

Good afternoon, Chief Justice Rapoza, Justice Green, Justice Kantrowitz, Justice Cypher, Justice Grasso, other assembled guests. May it please the court, my name is Elise Busny. I had the privilege of serving as law clerk to Justice Gerald Gillerman. I am honored and humbled to have been asked to speak today on behalf of his law clerks in support of the Attorney General's motion.

Judge Gillerman was one of a kind. I remember vividly that during my job interview with him in the fall of 1993 he told me that he would be turning seventy in December 1994 and that if I took the job, I may only have it for a few months, as seventy was the mandatory retirement age. I told him that even a few months working with him would be just fine with me. We all know now that turning seventy did not stop him, and he continued to serve on a recall basis until 2002.

He loved being a judge on this court. He told me that when he first became a judge, he got so pumped up for oral arguments that he had to listen to some music beforehand to calm him down.

He took the role of mentor to his law clerks seriously, both during the clerkship and after it ended. In 1994, all the clerks worked on the top floor of the Suffolk Superior Courthouse next door, and we each had our own cubicle. There was a phone, one phone, that would ring and one of us would be summoned down to meet with his or her judge. There was no e-mail; no texting; no cell phones. The judges, however, never came upstairs to see us. Except Judge Gillerman once did. I was sitting at my desk, working on a criminal case, the facts of which were pretty horrific, and all of the sudden behind me appeared Judge Gillerman. I had given him a memo earlier in the day, the details of which I cannot remember and which do not really matter. What I do remember is that he had come to mentor me, to make me a better law clerk, to make me a better lawyer. He came to give me advice on how to better analyze an issue and I have remembered it to this day.

Even after I left him in 1995 and started working as a litigation associate in "Big Law," Judge Gillerman kept in touch and we continued to meet for lunch. He would offer his advice on working in a big law firm, and I cherished it. I also cherished our conversations about his family. He was always generous in sharing stories with me about his children and grandchildren and what they were up to. It was so much fun to share in his joy and pride when he told me those stories.

Judge Gillerman was also interested in my stories about family. Just before I started my clerkship, I got engaged, and I was planning my wedding while I was clerking for him. He was always willing to discuss the wedding planning with me, down to the most detailed minutia. Despite his serious intellect, he was not above discussing whether my mother's or mother-in-law's latest idea was a good one or a bit over the top. He also made a point, since he could not come to our wedding, to take me and my then fiancé out to lunch before our wedding to wish us his best. And when our children were born in 2002 and 2005, he called me at home to check in on me to see how we were faring.

He had a smile that was disarming, and he was not afraid to use it. If we were debating a particular issue, and he was ready to make his final point to end the debate, he would, and then he would smile. He also had a terrific sense of humor, and I remember that we laughed together a lot.

We are all richer for having known him. In light of the impact Judge Gillerman had on so very many, on the bench, in the bar, and in daily life, his law clerks ask that this court allow the motion of the Attorney General.

Justice Green, speaking for the court, responded as follows:

When Gerry Gillerman arrived at the Appeals Court in April of 1990, it was an exciting time for the court. The court had recently expanded, from ten to fourteen judges. Gerry filled the vacancy created by the appointment of former Chief Justice Joseph P. Warner to that position, and he was joined shortly thereafter by current Supreme Judicial Court Chief Justice Rick Ireland, Betty Porada, Mel Greenberg, and Ken Laurence, who filled the four expansion seats, as well as George Jacobs, who had recently filled a vacancy created by the retirement of Donald Grant. Together, the new arrivals comprised nearly half of the Justices then serving on the court, and brought an infusion of energy and enthusiasm to the court. None, however, brought more of either commodity than Gerry Gillerman.

I first met Gerry in the late 1990s, while I was at the Land Court. By then, this court's caseload had more than overtaken the increased capacity brought about by the 1990 expansion, and I had heard stories about how crushing the workload was for the judges on the court. But not to Gerry. He acknowledged the volume of work, of course. But his eyes shone as he described his fascination with the issues he discovered in the many cases he considered himself privileged to consider.

Attorney General Coakley earlier alluded to the raw numbers of Judge Gillerman's appellate legacy: 891 opinions, of which 246 were published. I'd like to pause for just a moment to observe the ratio -- of the nearly 900 opinions Gerry authored, well more than a quarter -- indeed nearly a third -- were released as full signed opinions. To put that in context, something closer to twenty percent, actually slightly fewer than twenty percent, of the court's output ordinarily is released in published form. Gerry's colleagues occasionally felt need to remind him that not every case was of constitutional significance, and that many could be resolved on more pedestrian grounds. But his approach to his work simply reflected his inherent fascination with the subject matter.

When I joined the court in 2001, as part of another expansion to address the court's continued expanding caseload and accumulated backlog, I had the great good fortune to have the office immediately next door to Gerry's. In fact, for some reason there was a door in the wall dividing our two offices, and it was a common occurrence for me to look up from my desk to see Gerry come bounding through that shared door, having just discovered some riveting question in a case on which he was working, and not wanting to suffer the additional time it would take to go out into the hallway and around in order to share it with me.

In many ways, the roots of his personality can be traced to 1945, when fate placed him next to an exploding artillery shell in northern France. When he came out of surgery without much of his left leg, he could have reacted in any number of ways. Gerry emerged from the experience with a passion for life, a hunger for knowledge, and a deep and abiding commitment to justice and human rights. Those three attributes combined to shape the remainder of his life.

As you have heard, upon his return to the States he enrolled at Harvard College and then continued on to Harvard Law School and pursued a successful law practice in private practice with the firm that became Widett, Slater & Goldman.

Somewhat counterintuitively, considering the loss of his leg, he also became an athlete. You have heard that he was a highly competitive squash player -- for a time among the best in New England. He was also an avid cyclist -- in his youth he returned to reconstruction Europe for a cycling tour, and he often could be seen cycling around Boston. Of course, cycling in Boston is not without its perils. On one notable occasion he was struck near the Boston Common by a careless driver. In his fall Gerry was separated from his prosthesis. He was otherwise unhurt, and in fact it was perhaps the young woman driver who was most in need of medical attention when, after she rushed over to see if Gerry was all right, he responded that he was fine but could she please retrieve his leg from its location ten feet away.

Though I have mentioned his highly successful career as a lawyer, it was not until he came to this Court in 1990 that he became fully realized. By its essential nature, the work involves the search for justice in each particular case, and as I have commented Gerry embraced it with a passion exceeded by no one. He immersed himself in the details of the record in each case. He found nuances of analysis to consider. He wrote his opinions clearly, and in terms that nonlawyers could understand.

His first opinion, released a mere three weeks after his arrival, illustrates the point. Commonwealth v. Lapon, 28 Mass. App. Ct. 681 (1990), in which I should add, as a footnote myself, my current colleague Justice Meade argued on behalf of the Commonwealth. The case involved a charge of criminal trespass. The defendant was a shopper at a Star Market who claimed (incorrectly as it turns out) that he was entitled to a free half-gallon of Wisk laundry detergent. He refused to leave the check-out line, or the store, without the free bottle. When store management realized things were at impasse, they brought in the police, and the defendant's continued intransigence eventually led to his arrest and subsequent conviction. And here I borrow from Justice Rudy Kass, who offered the following summary in another venue: "Judge Gillerman's decision dealt crisply with the procedural issues and illuminated the substantive ones, with what proved to be a trademark bow to a lurking constitutional question that, in the case before the court, as Judge Gillerman wrote, did not need to be decided. The opinion was a sample of the excellent work that would follow -- that of a highly intelligent man, obviously enthusiastic about his work."

Judge Gillerman was also fiercely protective of the opportunity of the "little guy" to speak out against the powerful on matters of public concern. In Howcroft v. City of Peabody,, 51 Mass. App. Ct. 573 (2001), the panel reversed a judgment for the city on the plaintiff's claim that his employment had been terminated in retaliation for his outspoken protest of the failure to enforce regulations against smoking in public buildings. To similar effect is his dissent in Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124 (2002), where he expressed his view that the trial judge erred in refusing (on grounds of late disclosure) to allow the plaintiffs' expert to testify in support of their claim that the city had caused risk to the public by inadequate chlorination of the municipal drinking water supply. As he explained things, such an issue of public concern ought not to be stifled by overly zealous adherence to procedural regularity.

Another representative case is Commonwealth v. Croken, 48 Mass. App. Ct. 32 (1999), in which Judge Gillerman remanded a case to the trial court for an evidentiary hearing, based on the defendant's concern that an intimate (but undisclosed) relationship between his trial counsel and an assistant district attorney in the office prosecuting him might have deprived him of his constitutionally protected right to the undivided loyalty of his trial counsel. On further appellate review prompted by the Commonwealth's request, the Supreme Judicial Court adopted the same view.

Gerry was also an integral part of the social fabric of this court. Lunch among the Justices did not really begin until Gerry arrived, flush with the latest topic from the pages of the day's New York Times, or National Public Radio's Morning Edition. His natural curiosity and range of knowledge at times could make him intimidating to an uninformed interlocutor, but that was not his intention. For Gerry, animated conversation was simply another way to engage his curiosity, expand his understanding, and connect with other people.

His commitment to justice and outspoken nature occasionally led him into minor inconvenience. He was concerned, for example, one time when he passed without incident through a metal detector at airport security. Of course, Gerry knew well that his prosthesis should have set off the alarm, and he confronted the security official manning the station to express his concern over the lapse -- with predictable results. Gerry eventually made his flight, but there have been few more thorough searches in the history of aviation security than the one that followed his expression of concern.

During his tenure with the Appeals Court, he received an invitation he could not refuse -- to participate as a member of the United Nations International War Crimes Tribunal for Rwanda. The experience fed his passion for justice and human rights, and launched a third career in the field of international criminal law. On his return to Massachusetts, he continued his involvement in the field with academic research and teaching, and he participated in numerous efforts through the United Nations and otherwise to develop norms and standards in the emerging area. Even during his latter decline into illness, he remained fixed on the goal of somehow, someway, finding a way to achieve the goal of world peace. It is hard to see that central guiding objective on his part as anything other than the product of his own wartime experience.

He was a wonderful friend and colleague, and I speak for all who knew him when I say that I miss him very much. On behalf of Chief Justice Rapoza and all the Justices of the Appeals Court, it is my distinct honor to deliver the decision of the court, allowing the Attorney General's motion to spread these proceedings on the records of the court.