49 Mass. App. Ct. 1123 (2000)
A special sitting of the Appeals Court was held at Boston on January 11, 2000, at which a Memorial to the late Justice J. Harold Flannery was presented.
Present: Justices Armstrong, Perretta, Kass, Jacobs, Porada, Greenberg, Lenk, Beck, Raposa, and Gelinas; Retired Supreme Judicial Court Justice Benjamin Kaplan; and Retired Appeals Court Justices Gerald Gillerman, Kent B. Smith, and Raya S. Dreben.
Thomas F. Reilly, Attorney General, addressed the court as follows:
Justice Armstrong, members of the Court. May it please the Court: on behalf of the Attorney General's Office and the Bar of the Commonwealth, it is my honor and privilege to present a memorial and tribute to the late J. Harold Flannery, Jr., who served as an Associate Justice of this Court.
It's my particular honor to offer this tribute to a man whose life's work was something I looked up to and who served as a shining example to all of us. His career was a living illustration of all that is good in this profession; he saw the law as a vehicle to create a better society through basic fairness and decency. So many enter this profession with similarly noble aspirations - it is few that stick to them, fewer still that consistently aim higher and strive for more from others and from themselves. Judge Flannery was one of those few.
His greatest professional legacy is perhaps his career-long dedication to civil rights. After graduating from Wilkes University in Pennsylvania in 1955, he chose to follow in his father's footsteps, J. Harold Flannery, Sr., who was a lawyer, Pennsylvania Congressman and later a Judge of the Court of Common Pleas. They shared a career path and name, though J. Harold Flannery, Jr. was, nicknamed and became forever know, as "Nick." He attended and graduated from University of' Pennsylvania Law School in 1958. He then left for Washington, D.C., to work at the United States Department of Justice in the newly-formed Civil Rights Division. It was in Washington where he met the woman who would become his wife, Barbara Nash.
His lofty career path was set at the Department of Justice. He worked under some of our nation's most distinguished Attorneys General - Robert Kennedy, Nicholas Katzenbach, and Ramsey Clark. And he spent his twelve years deeply involved in efforts to desegregate public schools in the South -- the very cases and causes that have shaped our country's history.
In 1970 Nick took a position with the Harvard University Center for Law and Education, where he served for four years and, toward the end of his tenure there, was named acting director. During that time, he met Neil Sullivan, the Commonwealth's Commissioner of Education. Commissioner Sullivan learned of Nick's experience and qualifications and mentioned a local case that proved to be of great interest to him -- and to his civil rights legacy. The case was Morgan v. Hennigan, the landmark Boston school desegregation case, and Nick Flannery served as lead counsel for the plaintiffs.
The Flannerys moved back to Washington in 1974 when Nick became the National Director of the Lawyers Committee for Civil Rights Under the Law. That same year, Nick, along with Nathan Jones, argued, before the United States Supreme Court, the landmark case of Milliken v. Bradley, probably one of the most significant Supreme Court arguments and decisions of the Twentieth Century. He returned to Boston in 1975 to become a partner at the law firm of Foley, Hoag and Eliot. He practiced law in the private sector for nine years.
But it wasn't long before he was drawn back to life in public service. In 1984, Governor Dukakis appointed him as an Associate Justice of our Superior Court. He served with distinction for almost eleven years. Governor Weld appointed him as an Associate Justice of the Appeals Court, where he again served with distinction, but for too short a time. In the three and one-half years as an appellate judge, he wrote 227 decisions, 45 of which were published opinions.
During his years as a judge he also served as an adjunct faculty member at Northeastern University School of Law, teaching trial practice, and as a trustee of his alma mater, Wilkes University.
In looking at the life of such a distinguished and accomplished man, I am struck by the way he is described by people who had the great chance to work with him and who had the great fortune to know him.
I am told by John Hitt, an Assistant Attorney General in my office who worked as law clerk for Nick while he served on this court, that working under Nick was a legal education like no other. Judge Flannery's door was always open. He always had time to discuss a case or share a humorous story or memory from his days as a litigator at the Department of Justice. Even on days when Judge Flannery was in tremendous pain from his illness, he would immerse himself in his work. He loved the law and tirelessly worked to ensure that justice was done in each case that came before him. Be it a simple commercial dispute or a case with more serious implications, he always strived to apply the law correctly and fairly.
Judge Flannery was guided by a kind of progressive pragmatism that saw the law as a tool for advancing humanity. When asked what prompted him to go to work in the Civil Rights Division of the Justice Department, Judge Flannery eloquently and astutely replied, "At an early age I came to the conclusion that the struggle for racial equality was going to be the defining issue of my generation." It is with that realization that Judge Flannery committed himself in a most remarkable way to many of the great civil rights struggles of the last half of the century.
Above all, Judge Flannery appreciated and relished the Trial Court and trial practice. Assistant Attorney General Pamela Hunt, Chief of the Appeals Division of my office, had appeared before the Judge as a prosecutor many times at both the trial and appellate levels. She described him as a man of quiet dignity, integrity, and courage and as a down-to-earth person who never lost sight of the fact that his rulings and decisions had an impact on real people with real problems. Everyone who came before him and every position that was presented to him was treated with the same amount of deference and respect. No matter which way his decisions ultimately went, everyone knew that they were the product of the thought and care he put into everything he did.
Judge Flannery's impact on the law of this country and this Commonwealth cannot be overstated. As a litigator and as a judge, he committed his life to public service. His rare combination of legal acumen and ability, his pragmatic dedication to social justice, his appreciation for the frailty of the human condition, and his wit and humor, will be missed by all.
It is an honor for me to be here today to pay tribute to Judge Flannery, who exemplified so completely the highest ideals of the legal profession. On behalf of the Bar of the Commonwealth of Massachusetts, I respectfully move that this Memorial be spread on the records of the Appeals Court.
Attorney Michael B. Keating addressed the Court as follows:
Justice Armstrong and honorable members of the Appeals Court, may it please the court. I speak on behalf of Justice Flannery's colleagues in the practice of law -- his partners and associates at Foley, Hoag, & Eliot, the members of the Civil Rights Division of the Department of Justice and the Center for Law and Education at Harvard. I also speak for the thousands of men and women who -- over the course of his distinguished career as a trial lawyer -- knew him as a hero, a mentor and a friend. It is a special privilege for all of us to support the Attorney General's motion.
Although he may have had an earlier existence as "J. Harold Flannery and a later one as "Associate Justice Flannery" to us he was simply Nick Flannery. And I start there because his fundamental decency, his exquisite sense of fairness, his warmth, his ability to connect with others, his kindness and humor permeated all aspects of his life - both personally and professionally. He had lawyering skills and accomplishments which were exemplary and which I will discuss in a moment, but if there is truth in the adage that to be a fine lawyer you must first he a fine person, Nick proved it. I risk hyperbole and if Nick is looking down (or perhaps up) at this proceeding he would raise an eyebrow and admonish me for saying it -- but everyone -- and I mean everyone -- loved Nick. Hiller Zobel put it well when he said that Nick was "a friend limitless in affection and support." Nick made himself available to everyone. He mentored, he listened, he advised. He relished your successes and lifted you from your falls. In a profession which has its share of self-promotion, Nick was a lawyer who took particular pleasure in advancing the careers of other people.
The defining moment of Nick's legal career came early when he joined the Department of Justice -- and became head of a Mississippi unit of the Civil Rights Division. Thus began Nick's long crusade for civil rights which lasted his lifetime. I chose the word crusade intentionally because the hard work of civil rights advocacy in the 1960's in the deep South confronted all the hostility and even the physical dangers of distant battle. For a decade — from the late 1950's to the late 1960's - Nick constantly traveled to the South. He was counsel in more than 40 civil rights cases brought by the Department of Justice and a leader in the Civil Rights Division which became increasingly aggressive in its efforts to secure the right to vote for black citizens in the South and to begin the process of school desegregation. So well known did Nick become as a champion of civil rights in Mississippi that on one occasion a newspaper in Holly Springs, Mississippi, announced in its headline "Flannery is coming."
But Nick also understood that not all good lawyering is in the pleadings and effective argument. Time and again, Nick brought his enormous warmth and personal charm to assist him in persuading citizens and officials in the South to feel his intense compassion for the disadvantaged, the less fortunate, those who did not have a fair chance. He was not adverse to breaking bread -- or sharing a liquid refreshment -- with local officials, sheriffs, judges and opposing lawyers, believing that his message would be better understood if his adversaries not only respected, but also liked, the messenger.
Nick was also a good lawyer in the traditional sense -- a brilliant wordsmith -- always prepared and quick. In one appearance before a three-judge court in Mississippi, challenging the constitutionality of the Mississippi poll tax, a Federal judge asked Nick -- in so many words -- "Why is paying a small poll tax such a big deal -- people pay more than that for food," to which Nick responded -- looking directly at the judge-- "But why should they be required to choose?"
His moral indignation at the plight of black citizens in Mississippi was deep and often forcefully expressed. On one of his last appearances in Mississippi, Nick appeared before the United States District Court in Oxford, Mississippi, Judge Claude Clayton presided. Judge Clayton, though initially not well disposed toward the civil rights struggle, became, in large part because of Nick's legal skill, eloquence, and frequent dinner companionship, a bright spot in the judicial landscape in the South. A white mob had attacked black children when the schools in Granada, Mississippi, were desegregated under a Federal court order. One young boy suffered a broken leg. The matter was quickly brought before Judge Clayton and a day of testimony established violations by local law enforcement and school officials. A rare evening session was held to hear closing arguments. In a dimly lit old Federal courtroom in Oxford, Nick addressed the Court and spoke of his experiences in Mississippi. In his words:
"I have seen Negro citizens of Mississippi subjected to many kinds of economic and physical coercion to try to prevent them from exercising rights guaranteed them under the laws and Constitution of the United States. They have lost their jobs and their homes. They have been subjected to verbal and physical abuse. But never before have I seen their little children beaten by adults. And never before has anyone seen school children, seeking only to be educated, chased through the streets and attacked by grown men. It is the shame of Mississippi."
Judge Clayton granted the government's requested relief from the bench.
In 1970, Nick turned his attention to problems of civil rights in the deep North and became Director of the Center for Law and Education at Harvard. There he became lead counsel in two celebrated and successful school desegregation actions in Detroit and in Boston. In Morgan v. Hennigan, as the Boston case was known, Nick -- the consummate trial lawyer -- proved overwhelmingly that Boston's schools were not only de facto segregated, which might have passed constitutional muster at that time, but that the schools were de jure segregated by the intentional acts of the school committee which provided the basis for the trial judge to find the conduct unconstitutional. Thus began a warm association between Nick and the late Judge Arthur Garrity whom Nick greatly admired and, I believe, the feeling was mutual.
After serving as National Director of the Lawyers Committee for Civil Rights Under the Law, Nick joined Foley, Hoag & Eliot as a litigation partner. I do not have to explain to this bench the pleasure of having Nick as a colleague. It was also a pleasure to welcome Barbara to the Foley, Hoag & Eliot family. At our firm Nick continued his traditional excellent advocacy on behalf of our clients. He also -- and I think more importantly -- helped guide the firm's course toward our strong tradition of civil liberties -- and to the principle that the practice of law is a profession with obligations, duties and responsibilities. In that connection, I recall an instance when we were asked by the American Civil Liberties Union to represent the Communist Party in a First Amendment case. We were also at the same time representing several defense contractors and in those Cold War times their senior executives had a dim view of the Communist Party and perhaps a dimmer view of the law firms that represented the Communist Party. In the ensuing discussion, Nick reminded us in his gentle but forceful way of the overriding importance of representing the unpopular client in a matter of constitutional dimension which, thanks to his guidance, we did.
But as good as he was a trial lawyer -- and he was very good -- the tug of public service hovered over him and when -- in 1984 -- Governor Dukakis's judicial nominating committee reached out to him to apply for a position on the Superior Court, we knew that we had lost him to another -- if not a higher -- calling.
When Nick appeared before the Massachusetts Governor's Council in 1984 at the hearing on his nomination to the Superior Court, he concluded his statement to the council with these words: "I seek this opportunity to be a judge because I am ultimately public service oriented, and it is, for one of my training and experience, the highest form of public service. I believe that I have prepared myself to perform the duties of the office faithfully and effectively, and on that basis I ask for your confirmation."
He had, indeed, in a multitude of ways embedded himself in the grateful memory of his friends who join me in supporting the Attorney General's motion.
Honorable James F. McHugh, III, addressed the court as follows:
I am deeply honored to participate in these memorial proceedings. As we have heard, J. Harold Flannery became a Justice of the Superior Court when he took the oath of office on October 26, 1984, after a distinguished career as a trial lawyer here and throughout the country. He took seat number eleven on the Superior Court, a seat created in 1875 when the Legislature increased by two the number of Superior Court Justices it had authorized when creating the Court in 1859. Justice Flannery was the tenth occupant of seat number eleven and the fourth who ascended to an appellate court. In welcoming him to the Court, then Chief Justice Thomas Morse said at his October 29 induction that "[w]e greet him; we felicitate him; we congratulate him, and ourselves as well, for the opportunity to work with him in the future."
Chief Justice Morse was entirely right to congratulate the Court on that splendid occasion, for Nick Flannery became an ideal colleague. His scholarship was of the highest caliber. No one who read his opinions could have any doubt of that. His writing was clear, straightforward and effective. Without distracting flash or glitter, it conveyed succinctly the point he intended. Listen for a moment to two paragraphs from his opinion in Bowman v. Heller, a sexual harassment case he decided on July 9, 1993, and which the Supreme Judicial Court later affirmed. He found in the plaintiff's favor on liability and then turned his attention to damages:
"Lastly, the plaintiff urges that I award damages to her in a total amount of. . . $160,000 . . . $50,000 for intentional infliction of emotional distress . . . $50,000 for reckless infliction . . . $50,000 for sexual harassment, and $10,000 for violating her right to seek Union office.
"The plaintiff's approach to the issue of damages is fragmented or duplicative; and I disagree with it. To be sure, the defendant's vile deed violated several rights of the plaintiff. But the misconduct itself was a discrete event, although the defendant certainly compounded it by his subsequent negative stance. And although the plaintiff was injured in more ways than one, i.e., attempted interference with her campaign as well as emotional distress, the several adverse effects resulted from the defendant's one outrageous attack. Therefore, while the plaintiff is entitled to be fairly compensated for the pain and suffering inflicted by the defendant . . . and for the reasonable cost of her therapeutic expenses resulting from his attack, subdividing her losses and correlating them with her claims for relief is uncalled for."
That brief passage hints at another reason why Nick was such a marvelous colleague. He had, and repeatedly demonstrated, a deep and ultimately uplifting conviction that there was a bright and discernable line separating right from wrong and justice from injustice. He did not inhabit a world filled with gray and shadowy borders. To be sure, not every question had a clear and unambiguous answer. But many did, particularly when the questions dealt with what was fair and proper in the use of power one person had acquired or had been given to affect the welfare and security of another, or when the questions dealt with behavior based on unthinking and unreasoning stereotypes.
Nick was a kind and patient man. Mention of his name to a court officer or to an assistant clerk or to a law clerk invariably produced a warm response and an expression of pleasure regarding the last time they had worked together. But he had no patience for injustice, none at all. He had the intelligence, wisdom, empathy and understanding to see what was right and he had the courage to see that right was done. I can recall an occasion on which he imposed on a defendant in a case of some notoriety a sentence with which the District Attorney and many members of the media disagreed strongly, publicly and frequently in the days and weeks that followed the sentencing proceeding. His calm and dignified reaction to what became personalized and vehement criticism was a model to all who observed him.
Nick's sense of right and wrong and his sense of public service not only pervaded his approach to dispensing justice but richly colored his own perception of what it was to be a trial judge. At the council hearing on his nomination to the Superior Court, he expressed a belief that appointment to the bench was a lawyer's opportunity to engage in the highest form of public service. After his confirmation, he demonstrated that belief daily. He never shrank from the difficult case. His frequent encounters with complex and sometimes controversial civil and criminal cases gave ample witness to that. But neither did he reach out for a case simply because it was likely to be in the public eye and he never, ever used the cases before him to inflate his own stature or to advance his own cause. It was not that he resisted temptation in that regard. His character was such that temptations of that stripe just never arose.
In the last analysis, though, the strength of Nick's collegial presence sprang from a host of intangibles. His dry wit frequently brought relief to situations otherwise either pindroppingly tense or dreadfully dull. He demonstrated time and time again his ability to extemporize with precisely the right choice of words. And his sense of humor was never far beneath the surface. As but one example, his decision in the Boston parade case, affirmed by the Supreme Judicial Court, ultimately was reversed by the Supreme Court of the United States in a unanimous opinion. Shortly thereafter, at a dinner the Superior Court held to wish him well on his appointment to this Court, Nick told us how proud he was to have unified that otherwise frequently and badly divided judicial body. When first encountered, the self-deprecating humor he displayed on that occasion and on so many others seemed to be a delightful incongruity emanating from one whose life's work had so powerfully affected the course of justice for so many others. In fact, it was not incongruous at all. It revealed instead the warm and unassuming man he really was.
Finally, and on a more personal note, Nick was a great companion. I remember riding and talking with him on clear, crisp fall Saturday mornings as we, then both newcomers to the bench, visited prisons throughout the Commonwealth because he had convinced me that it was a good idea to know something about the conditions to which we might be required to consign those who appeared before us. I have a vivid memory of standing beside him in the tightly-packed outer hallway of the Bayside Club on St. Patrick's Day some years later while we listened to then Senate President William Bulger skewer virtually every one of the Commonwealth's inhabitants, listened to Boston University President John Silber's a capella rendition of a parodied Irish ballad and, because we and countless others had blocked the passage between the kitchen and dining room, passed over our heads trays filled with plates of corned beef to the hungry celebrants fortunate enough to have been seated inside. And I have a warm memory of sitting with Barbara and with him at dinner not so very long ago when he, although clearly burdened by his debilitating illness, discussed with his usual wit, humor and charm all manner of topics without the slightest hint of self-pity or sorrow.
At a 1959 dinner held to mark the One Hundredth anniversary of the Superior Court, Supreme Judicial Court Chief Justice Stanley Qua, in remarks frequently quoted -- at least in our circles -- said this of his earlier tenure on the Superior Court:
"[When I joined the Superior Court] I felt, and I still feel, that I became part of a great court -- great because of the people who composed it. In the last few days I have been trying to think of the qualities in those people that made the court great. Not all were great lawyers, although some were. Not all were great psychologists or profound students of human nature, although some were. I have come to the conclusion that the common quality which dominated those people and which caused the court to be respected and trusted throughout the Commonwealth can best be described by one hyphenated word -- high-mindedness."
Nick Flannery was the embodiment of that high-minded spirit and he combined it with scholarship, with wit and with a host of other qualities that made him a superb colleague. It was my great good fortune -- it was our collective great good fortune -- to have had the opportunity to know him, to laugh with him, to learn from him and to watch him so ably discharge the people's business.
Attorney Anne E. Gowen addressed the court as follows:
Justice Armstrong, Associate Justices of the Appeals Court, Mrs. Flannery, and guests: it is a privilege to speak today in support of the Attorney General's motion.
I speak on behalf of those women and men who, as new lawyers and interns, had the opportunity to work for and learn from Judge Flannery. In preparing these remarks, I reflected on my own brief but invaluable experience as Judge Flannery's law clerk, from September through December of 1998. In addition, I had the wonderful, though sometimes bittersweet, opportunity to speak with several of his other former law clerks and an intern, each of whom had worked with and known Judge Flannery longer than I. Our conversations revealed something of the richness and depth of Judge Flannery's legacy to his students. In these remarks, I hope to capture some small fragment of what he meant not just to me, but to those many of us whose lives, as new lawyers, Judge Flannery touched.
I'm going to talk a little bit about his commitment to teaching, then about several character traits that made him an exceptional role model for us; and then about Judge Flannery as our friend. I'm going to try to keep this under two hours.
In working with his clerks and interns, Judge Flannery was first and foremost a teacher. Judge Flannery was somewhat notorious among Appeals Court law clerks, in that he required his law clerk to read the briefs on every case that would be heard on a day that he was sitting. (When I worked at the Court, most of the other law clerks were asked only to review the cases that their judge would likely write.) This assignment was not for Judge Flannery's benefit: it was for ours, and what a gift it was that he gave us. Before oral argument, Judge Flannery would sit with us in his office and discuss the cases. After oral argument and semble, Judge Flannery would sit with us again. He would not only discuss the legal points at issue, but engage us in a wide-ranging discussion about the strengths of the oral presentations, the quality of the briefs, the talents of the attorneys, the probable trial strategy of the attorneys below, and the most likely legal and practical rationales of the trial judges. It was an incredible learning experience.
Judge Flannery was our teacher, and he taught not by lecturing but by engaging us in the work of the Court. He really tried to convey to us something of what it was for him to be a judge. He treated us as partners, even though we all realized that this was something of a fiction. If we disagreed with him about the outcome of a case, he would sometimes say, "Okay. Go write up this case the way you would have it come out, if you were deciding it. Persuade me." This was, in part, a pedagogical exercise; the student writer might realize, after spending quite some time on a draft opinion, that Judge Flannery's view was really the better one.
The assignment of writing up a draft opinion that contradicted Judge Flannery's conclusion was more than an academic exercise, though, because Judge Flannery was truly open to persuasion. He loved an intelligent debate, and "debate" was a meaningful concept for him: he really was open to the possibility that good reasoning might change his mind. I don't think many people truly are that open. After Judge Flannery had hired me, but before my employment had begun, he sent me a memo on the subject of appellate opinions. He told me this: "Above all, the Court and I need from you independence of mind . . . . [W]hen I am corrected," he wrote, "I do not sulk. (A brief tantrum, perhaps.)" I never saw Judge Flannery sulk.
On the theme of engaging us in the work of the Court: when we had worked with him on an opinion, he never forgot our contributions. He would call us later and say "guess what, the SJC denied further appellate review in OUR case," or, in at least one instance, he referred to a just-issued SJC case that seemed at odds with a recent Flannery case, and he told his intern/law clerk, "did you see today's SJC decision? I guess I should have followed your advice." Regardless of whether he really felt that way, he remembered our contributions, took them seriously. He used to tell one law clerk, in a serious voice: "now you realize, I'm relying on YOUR ADVICE in this one." One law clerk remembers how, during meetings with clerks and interns, he would speak to Mrs. Flannery on the phone, and he would tell her, "I can't talk now -- I'm meeting with my attorneys." This was surely intended humorously, but for interns and recent law school graduates, it was incredibly exciting to know that Judge Flannery really did take us seriously -- thought of us as his advisors. Nothing could have motivated us more strongly to work hard and seriously during our time as law clerks. And nothing is more motivating for me now, even in his absence, than the desire to live up to Judge Flannery's high expectations.
He shared with us his incredible excitement about the work of this Court. He would call us at home, to tell us that he had had a new insight about a case he was working on. One law clerk had a beeper, which she showed Judge Flannery how to use, and he was quite taken with it. He beeped her frequently. I can't imagine anything as exciting for a law clerk as having a brilliant judge call you at home to include you in his reasoning about a case. What a privilege, what excitement it was to work for Judge Flannery. During his days on the Superior Court, I understand that working with Judge Flannery was considered by the law clerks to be a plum assignment. He was sorely missed when he was elevated to the Appeals Court.
I don't want to talk too much about the times, more recently, that Judge Flannery was seriously ill. But those times in a way brought into focus his intense commitment to and enthusiasm for his work: an enthusiasm and commitment that could not help but infect his clerks and interns. He called me once from the hospital, in the midst of a chemotherapy session, to fill me in on a new idea he'd had about a case. My understanding is that during the 1997-98 court year, when his health was already troubled, he still had something like three interns, plus his law clerk and he still put the same effort, as always, into teaching them.
Judge Flannery had several qualities in particular that stood out for all of his clerks and interns -- qualities that made Judge Flannery a particularly exemplary role model.
Something that struck all of us about Judge Flannery was his tremendous respect for others. That sounds abstract and vague, and even kind of trite, but Judge Flannery made it concrete in everything he did. We watched him in oral argument where he would generally let attorneys speak for quite some time before he would interject with a question. When asked about this practice, he said that he felt it was important to let the attorneys have a chance to speak: he recognized how hard they had worked (when they had), and wanted to give them a chance to do the very best that they could. Just as he was confident (or at least acted confident) that we as his law clerks would advise him well, so he was unfailingly optimistic that the attorneys who appeared before him would do well.
He was very respectful of those who appeared before him, even when their performance seemed, to his (perhaps a bit arrogant) law clerks, to be less than excellent. Judge Flannery told one of us, who remarked on an apparently subpar argument, that he remembered his own days as an attorney with a busy case schedule, not enough time to work on cases the way one might want to. It's not as easy as it looks, he reminded us.
This is not to say that Judge Flannery's standards were low. As you all know, no one had a more pointed wit than Judge Flannery. When an attorney's or a law clerk's work was not up to snuff, however, Judge Flannery's reaction was not one of taking personal offense or of hostility; it was more an attitude of disappointment. He loved the practice of law and was disappointed when another lawyer loved it less.
"Judge Flannery was the humblest man I ever met," one law clerk said about him. He didn't talk to us about his obviously very distinguished career unless we pressed him for details, for stories. One law clerk talked to him about doing an oral history of his career, something that all of us law clerks would have loved to be involved in. Judge Flannery put the law clerk off -- it was too late, it wouldn't be interesting. The law was more interesting to him than a history of his personal accomplishments.
Before I started working for him, he wrote me a memo entitled "Appellate Opinions." The attitude he described was characteristically humble:
"The principal (perhaps only) purpose of an appellate opinion is to announce and explain the result in a particular case. Plain, clear, non-adjectival prose is required, and I disfavor instructive essays, displays of authority or erudition, and legalistic pronouncements."
Even so advised, I frequently wrote too verbosely for Judge Flannery's taste. Once he sent me several opinions with a concisely worded note attached. "Here are three Kass products, two 1:28s and one rescript. Emulate him."
Another thing that came up in all of our recollections of Judge Flannery was this: in addition to his virtuosity with the law, he was also always conscious of the broader social and moral consequences of the decisions he was called upon to make. And he included us in that consciousness. When we would become obsessed with the formal correctness of a particular jury instruction, Judge Flannery would always return us to the central moral points at stake. In a summer 1996 essay in the New England Law Review, Judge Flannery's remarks sounded much like those we heard from him in person. The essay was entitled, with Judge Flannery's typical modesty, "some thoughts on appellate advocacy" (and with typical modesty, the essay began with the disclaimer that Judge Flannery had not at that time been on the Court long, so that it might be premature or presumptuous for him to advise others about appellate advocacy). Judge Flannery reminded his audience that while "[t]he heart of the matter . . . is convincing the court that in justice, your client ought to win. If the court sees your client's cause as legally supported but not right, you are in trouble." This was a theme to which Judge Flannery returned in a letter to the Boston Globe, written in December of 1998. In his discussion of the tension that sometimes arises between law and morality, he referred to Emerson, who wrote in his Journal: "Ask not, is it constitutional? Ask, is it right."
Finally, Judge Flannery was of course more than a teacher: he was a friend. He was never intrusive, but when we brought him problems from our personal life, he gave us compassionate, but direct, advice. He empathized with and gave his undivided attention to our struggle in balancing family with legal career; in balancing a desire to be involved in public interest law with the pressing need to make a reasonable amount of money. On an everyday level, in less important matters, he was always interested in what was going on with us. I did most of my work with Judge Flannery by phone. He would call the law clerks' office almost every day, starting each conversation with the question, "So Anne, what's new and exciting?"
He took joy in our personal triumphs. He and Mrs. Flannery went to dinner with his law clerks and interns and their spouses. He kept in close contact with at least several clerks after their tenures came to an end. He celebrated the births of our children. He came to a birthday party for one clerk's young son. The party featured the clerk's husband dressed up as Barney the cartoon dinosaur. The concept of Barney was unfamiliar to Judge Flannery, who nevertheless rejoiced in the happiness of his law clerk and the family, and I understand that he had a wonderful time.
Judge Flannery was truly loved by the new lawyers who worked with him. His clerks and interns describe him as a teacher, a mentor, a friend, a hero, and in one instance, as almost like a father. He is and will always be greatly missed.
On behalf of all of Judge Flannery's law clerks and interns, I join in supporting the Attorney General's motion.
Justice Rudolph Kass, speaking for the court, responded as follows:
Judge Armstrong, members of the Court, guests from other courts of the Commonwealth, Attorney General Reilly, members of the Bar, Barbara Flannery, family and friends of Judge Flannery.
Fairly early in my service on the Appeals Court I dared to challenge an editorial convention of the Reporter of Decisions, namely that of citing to a volume of the Massachusetts Reports for the text of a rule of procedure. Lawyers, I suggested, looked to the rule book, not the Massachusetts Reports, for the text of a rule. The then Reporter, Thomas Merritt, all six plus feet of him, drew himself up and said: "Well judge, the rule book is ephemeral. The Massachusetts Reports are forever." Conscious of that permanence, I shall repeat certain things about Judge Flannery that I have had occasion to say or write in more ephemeral venues. In so doing I am comforted by Holmes's observation that it is sometimes better to repeat the obvious than belabor the abstruse.
Upon his death on December 18, 1998, The Washington Post, under the headline "Deaths Elsewhere," ran an obituary of Justice J. Harold Flannery, Jr., sandwiched among Janet Murrow, a journalist and the widow of Edward R. Murrow, Antonio Ordonez, a celebrated Spanish bullfighter, and Toots Mansfield, a seven-time world champion calf roper. Nick Flannery would have enjoyed the juxtaposition. It was a metaphor for both his wide and eclectic circle of acquaintances and his taste for life's quirks and dissonances.
For example, how did J. Harold Flannery, Jr., an elegant and dignified figure, the son of, well, J. Harold Flannery, also a judge, and a Congressman, come by the seemingly unrelated sobriquet, "Nick"? There is only anecdotal evidence, but it is from a reliable source: Barbara Flannery. The younger Flannery needed to be distinguished from the elder, and he needed a nickname. "Nick" was a diminutive nickname and that was the tag his mother and father pasted on him, pending other invention. It stuck.
Nick Flannery became a justice of this Court on May 31, 1995, after a distinguished career at the Bar and on the Superior Court, as we have heard. He was appointed to the Appeals Court by Governor William F. Weld, who understood that justice was neither conservative nor liberal. "This guy is so good," the governor said,'that not even ideology can stand in the way of his appointment." Nature tailored Nick Flannery for the role of judge with just the right characteristics of physical presence, mind, toughness, and heart. When Judge Flannery entered a courtroom or any room, he filled it. Partly this was physical. Judge Flannery was a tall man, and though certainly not stout, he was full frame. More important were the eyes, which penetrated when they did not twinkle. His moustache worked for him: somehow it lent gravity. With this went a courtly bearing; he would bow slightly on meeting and manage to say something gracious, creating the impression that he was particularly pleased to meet the person encountered. His voice, in the second tenor range, compelled listening.
These attributes Nick Flannery, the lawyer, enthusiastically employed in amateur theater. At Wilkes University, when he was all undergraduate, he ran a country-western music radio show under the nom de disc, "Nashville Nick." He was a successfully dramatic lawyer. Going on the bench merely changed the stage on which he played. As judge, he was not above shrewd theatrical gesture. On a drizzly St. Patrick's Day in 1986, lawyers before him in a motion session in Dedham were particularly fractious. Rancor peaked on the sixth case called. Two lawyers, O'Brien and Finnegan, even as they approached the bench, were abusively at each other about a discovery matter. Such was the volume and character of their squabbling that the entire assemblage of lawyers waiting to be heard became fixed on them. O'Brien and Finnegan were so absorbed in their mutual recrimination that they did not at first notice Judge Flannery lower his head, put his face in his hands, and shake his head slowly from side to side. Then the lawyers noticed, and stopped talking. At that strategic moment Judge Flannery said ever so gently, "Gentlemen, gentlemen, please, not today, of all days." The courtroom was transformed. The rest of the argument as well as the balance of the morning's business proceeded in businesslike fashion.
A performer himself, Nick Flannery admired the performance of others. He rejoiced in a good brief or good argument. After listening to a brilliant effort in a lost cause, he praised the lawyer in postargument consultation among the judges for having managed "to make chicken salad out of chicken feathers." The world amused Nick Flannery, as it often does serious people. Indeed, one of the reasons we who knew him miss Nick Flannery so is that he was a hilariously funny man. He saw the frailties of the world sharply and spoke or wrote of them wittily. If ever there was a man who demonstrated the difference between being serious and being grave, it was Nick Flannery. On draft opinions of other judges, he sent out, in the red ink he favored for the purpose, a stream of incisive comments. "I couldn't agree more, or care less," he once wrote on a circulating draft, acknowledging that, although all cases are important to the parties, chaff does drop into the appellate mill that will not make much of a dent on the human condition.
Politics ran in the Flannery veins. In turn he was entertained and appalled by the State and national scene. Of course, he was wired to everything. Each day he received telephone calls from judges around the State and one developed the notion that Flannery was the nerve center for the entire judiciary. He seemed to know everything that was about to happen. This was an impression Nick Flannery made no effort to dispel, "Thank you so much for calling," was his familiar close to a call from his vast network of informants. As for his colleagues, he had their number. To one who had dropped by brownies when he was ill, he explained that there were two kinds of brownies, fudge brownies and cake brownies. He was, he said, a cake man himself, and the received brownies were in that category About four years ago, I received a postcard from Berlin, Germany. On the picture side, which was of the second rate quality one associated with East Berlin before the wall came down, was Potsdammerplatz. The message was: "Herr Kass, your pictures are ready," and was signed "Ulbricht." Walther Ulbricht had been the leader of the German Democratic Republic, as East Germany had been called. What was this? It began to dawn on me. Nick was traveling in Germany and he had remembered that in 1953 1 had an encounter with East German police for suspected espionage and had never been given back the film that was in my camera when I was pinched.
One of the consequences of Nick's several maladies was that it had become hard work to rise from a chair. To assist him, Nick and Barbara bought a pneumatic device that gently catapulted the occupant to a standing position when the user signaled it by taking weight off through downward hand pressure on a bench or table. In what turned out to be his last sitting on the court, Nick had the device placed on his chair behind the bench. Three of us, Nick, Judge Perretta, and I, marched in, stood for the opening cry and then, with due solemnity, took our seats. Nick's contraption, however, was frozen in the up position so that, when he sat down, Nick towered magisterially over the two of us. Concerned that he might be uncomfortable or embarrassed, we whispered offers of help. Nick passed us a note: "It isn't bothering me."
In his three and one-half years on the Court, Judge Flannery wrote 227 opinions: thirty-five signed; ten per curiam rescript opinions; and 182 unpublished opinions. His debut with a published opinion was Commonwealth v. McLeod, 39 Mass. App. Ct. 461 (1995). The case involved a claim that trial counsel for the defendant had rendered ineffective service by failing to object to the receipt of evidence about prior bad acts of the defendant. Judge Flannery decided that the uncharged bad acts were not "so remote or unrelated that their only function can be to inflame the jury against the defendant as a generally evil man . . . . This case is not one in which the line between inadmissible propensity evidence and admissible pattern evidence is difficult to discern." It was a lucid application of the state of the law, although Nick Flannery perceived that this particular rule was more pragmatic than intellectually defensible. "Explain it to me one more time," he later wrote on a draft opinion that employed the propensity-pattern distinction. "Evidence of prior bad acts may not be admitted to show the defendant's propensity to commit a crime, but it may be received to show a pattern of conduct."
Evidence was a field in which Judge Flannery wrote with exceptional command and lucidity. He understood what was behind the labels. In Commonwealth v. Rockett, 41 Mass. App. Ct. 5 (1996), there was objection to admission in evidence that an unknown voice had cried "David," the defendant's first name, as the defendant fled the building in which the crime had occurred. Judge Flannery wrote, "The statement was an out-of-court declaration offered to show that the person hurrying away from the dwelling was the defendant; that is to say, it was hearsay. Such a statement is inadmissible in evidence unless it comes within a recognized exception to the rule of exclusion. The term res gestae (part of the happening) is in judicial and academic disfavor. However, under labels that are more precisely descriptive or explanatory, as a 'spontaneous exclamation' or 'excited utterance,' such statements are admitted, provided they relate to the event at issue and bear indicia of trustworthiness, e.g., spontaneity and absence of a motive to fabricate."
The same ability to understand what was really going on is reflected in Judge Flannery's opinion in Geller v. Allied Lyons PLC, 42 Mass. App. Ct. 120 (1997), dealing with the fiduciary obligation of a corporate officer to disclose self dealing. Judge Flannery wrote, "As a matter of law, sotto voce indications do not fulfill a fiduciary's duty of full disclosure of self-dealing. The plaintiff's actions here to inform Dunkin of the finder's fee agreement did not rise to the level of full and fair disclosure that has long been required before a fiduciary may procure personal profit in the conduct of corporate affairs."
On the subject of improper closing arguments, Judge Flannery, with characteristic concision, wrote in Commonwealth v. DeMars, 42 Mass. App. Ct. 788 (1997): "The prosecutor's conduct of this case was a wholesale violation of those precepts. She sought to cause the jury to loathe the defendant. That she may have succeeded was the substantial risk of miscarriage of justice." An old government lawyer himself, Judge Flannery greatly admired the work that assistant district attorneys and assistant attorneys general did and he remembered them as individuals. He was the more pained, therefore, when they fell seriously from grace. I resist the temptation to review the entire Flannery corpus but allow me to mention one more, Ford v. Grafton, 44 Mass. App. Ct. 715 (1998). That case reflects Judge Flannery's passion for fairness, his discipline as a lawyer, and the misconception our friends in the press sometimes harbor about what it is that courts do. A Boston Globe columnist savaged this opinion. The facts were painful. Anyone who reads Judge Flannery's exposition of the facts with understanding senses his anger about the apparently indifferent and inept manner in which the police in this case dealt with the violence and threats visited upon the plaintiff by her former husband over a period of slightly more than a year. But the Legislature had enacted a statute immunizing municipalities against claims based on police failing to prevent criminal conduct by a third person. Nick concluded the opinion of the court thus -- borrowing language from the Supreme Court: "Judges and lawyers, like other human [beings], are moved by natural sympathy in a case like this to find a way for [the plaintiff] to receive adequate compensation, for the grievous harm inflicted upon [her]. Before yielding to that impulse, we must remember that we are bound by our Constitution and laws. The people of Massachusetts may choose by legislation to hold towns and their officials accountable in situations like this one. [But] they should not have (accountability] thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment, nor by the equal protection clause or G. L c. 258."
The mind that Judge Flannery brought to bear on his work was tough and quick. He appreciated that the application of the law more often than not exacted a penalty on one side or the other. He never confused judging with a popularity contest or with a platform from which to mold the world in the shape he fancied. One had, however, only to listen to his conversation or to read his opinions to appreciate how much he cared for decency, fairness, honesty, and the proposition that public servants were to act in the public interest. The law might not be the means to cure every ill in society, but Nick Flannery thought it should damn well try. He was a fine judge. "Above all," Judge Benjamin Kaplan remarked, "He was one of those exceptional people in whose presence one felt lifted up in spirit and encouraged." He was also a wonderful friend.
We allow the motion that the Memorial be spread upon the records of this court.
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