394 Mass. 1115
A special sitting of the Supreme Judicial Court was held at Boston on April 18, 1985, at which a Memorial to the late Justice Jacob J. Spiegel was presented.
Present: Chief Justice Hennessey, Justices Liacos, Abrams, Nolan, Lynch and O'Connor, and retired Justices Cutter and Reardon.
Francis X. Bellotti, 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 in tribute to the late Jacob J. Spiegel, lately an Associate Justice of this Honorable Court.
Jacob Spiegel was an uncommon man who never lost his feel for the common. He was born November 24, 1901, in Boston, the son of Israel Spiegel, a clothing dealer, and Molly (Greenbaum) Spiegel, a housewife. He was graduated from Boston English High School in 1918 - twenty-three years before I was. He worked briefly in his father's clothing store and then entered Boston University Law School directly from high school, an educational route not unheard of in those days.
He attained his degree from law school on June 19, 1922, and was admitted to the bar in the fall of 1923. As an attorney Jacob Spiegel was active in the practice of law, but his interest turned naturally enough to politics and public service. It was precisely these interests that endeared Justice Spiegel to aspiring attorneys like me, who held him in great respect as "a lawyer's lawyer."
He was truly gifted politically, not only as a speech writer of note, but as advisor and counsel to such leaders as Henry Cabot Lodge, Jr., Leverett Saltonstall and Foster Furcolo. Nor was Justice Spiegel confined to a supporting, back room political role. He developed his skills and displayed his common touch early in his career, when he participated more directly in politics by running for representative from Ward 12 in Boston.
He possessed another quality that I, as Attorney General, especially appreciate and cherish. He was a person of immense personal loyalty who gave his time and his energies unstintingly. He was a man of the people who always found time to listen, and to help.
For a quarter of a century Jacob Speigel conducted an active private practice of law, spending much of that time in association with Haskell Friedman. Still, his dedication to public service and public affairs continued to find expression while he pursued an active career as a trial lawyer. In 1939 Jacob Spiegel was appointed a Special Justice of the Boston Municipal Court and he later served as First Assistant Attorney General under Attorney General Clarence A. Barnes in 1945-46. He went on to hold other offices including serving as counsel to the Port of Boston Authority in 1948 and director and general counsel of the Massachusetts Health Research Institute.
His public career reached its zenith in 1961 when Justice Spiegel was appointed to the bench of the Supreme Judicial Court. At that time he became the first person of the Jewish faith to serve on the high court. His presence was an inspiration and beacon to all members of minority groups within the Commonwealth who strove for equality and opportunity. His tenure on this Honorable Court from January of 1961 to September of 1972 embraced a period of great change, both in the society and in the law. The criminal law revolution hit with full force during his years on the bench. He participated in numerous decisions in which the frontiers of constitutional law were expanding, as were concepts of equal opportunity and racial harmony. We are fortunate to have had this uncommon man on the court during this critical period of our jurisprudence.
Two decisions of the hundreds which he wrote perhaps received more attention than most. Those two cases also demonstrate Justice Spiegel's humanity, his capacity for hard work and his legal acumen. In 1962 he wrote a dissent in the case of Massachusetts Comm'n Against Discrimination v. Colangelo, 344 Mass. 387, 402 (1962), which was notable for his view that the court should have not only upheld the constitutionality of the Commonwealth's anti-discrimination law but should also have enforced the commission's cease and desist order. In a widely quoted remark, he said, "I readily concede that legislation, in and of itself, cannot eradicate bias and prejudice from the minds of men. In my view, however, discrimination based on the hope of monetary gain and not upon personal prejudice is even more reprehensible."
Perhaps the most prodigious feat of his judicial career was his opinion in the small loans case, Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 (1971). That case, both at the trial and appellate levels, set records for length and complexity. Before the matter reached the Supreme Judicial Court it consumed 223 days of trial between the years 1966 and 1968. The trials involved twenty-one individuals and ten lending companies and resulted in the sentencing of seven defendants to terms of incarceration and thousands of dollars in fines. Justice Spiegel's opinion was spread over 185 pages of the Massachusetts Reports and was issued on November 4, 1971, seven years after the indictments were handed down by a grand jury. The record itself was comprised of thirty-seven volumes.
Upon leaving the bench he continued to keep his hand in the law, his lifelong love, and with that his commitment to public service did not diminish. He served as a special assistant district attorney and was later appointed to be the chief master of the Boston school desegregation case.
Similarly Justice Spiegel never lost his zeal for the cause of human rights. Even in retirement he was not afraid to speak out publicly to encourage citizen participation in government in general and more particularly in the effort to reduce racial tension and violence. It was his firm belief that the great majority of the people believed in the law and would follow the principles of the Constitution as embodied in the decisions of this court.
Justice Spiegel's personal commitment is perhaps best exemplified in these words which were included in comment he gave to the Boston Rotary Club:
"Let us, however, not stray from the fundamental truth that the history of law is the history of the moral development of the human race.
"It is the safeguard of liberty. It is the law both secular and spiritual which marks the difference between good and evil, between the just and unjust. Take away the law and all things fall into utter confusion."
On behalf of the bar of the Commonwealth, I move that this Memorial be spread upon the records of this court.
Paul T. Smith, Esquire, addressed the court as follows:
Mr. Chief Justice and Associate Justices --
A memorial service must inevitably follow a time honored formula. This traditional rite requires a recitation of the deceased's birth, intellectual growth, his education, his associations, the honors he earned during his lifetime and his service to the public and society in general.
Much of the above has been covered by Attorney General Bellotti and will be covered further by Mr. Justice Cutter and Gordon Doerfer. I shall limit myself to some personal observations of Justice Spiegel, covering a period of more than fifty years beginning about 1928.
Jack became a next door neighbor about 1927. I lived at 10 Castlegate Road and he lived with his parents at 12 Castlegate Road, just over the line separating Wards 12 and 14 of Boston. Castlegate Road, which now is, from what I read in the press, a major narcotics center, was then, like most of the area, populated by hard-working and law-abiding citizens of a middle economic class.
I was not Jack's contemporary -- he was fourteen years older than I. His contemporaries were such as Judge David Rose, Jackson Holtz, Jack Gottlieb.
I first saw him in 1928 or 1929 shortly after he had become my neighbor. On my way to the Christopher Gibson School, I would pass his door. I would see this handsome, immaculately and fashionably dressed man, extremely well groomed, rushing from his house with a briefcase in hand.
Shortly thereafter I learned that he was a lawyer and, at age thirteen, I had occasion to consult him. It seems three other boys and I had been pitching horseshoes on a vacant lot of land located at the corner of Blue Hill Avenue and Seaver Street when police officer Daniel Tarpy from Station 9 arrested us for trespass, held us at bay while he called into the station house, and had the paddy wagon drive us to the station where our parents bailed us out. That evening I went next door and asked Jack for his advice. At his request I told him the facts -- told him we didn't know that we had trespassed. Having learned that I wanted to be a lawyer, Jack sat me down and with what I later realized was a whimsical look, discussed the law of trespass, and gave me an academic lecture on the rights of land owners to be protected from invasion.
He went into history, starting with the Statute of Mortmain, went on to the Statute of Uses and, I believe, would have gone on further to shifting and springing uses when he realized how frightened I was. He very gently told me that he was just joshing. And made a genuine effort to comfort me.
He told me in effect to throw myself on the mercy of the court, and tell the judge that I was sorry but that I didn't know I was trespassing and that I would never misbehave again.
By way of showing his interest, he called my house the next day to tell me he had looked at the property and that there were no signs posted.
I told Judge Churchill this. He thereupon found us guilty and imposed a sentence of six months' probation. After that Jack made it a point to occasionally chat with me, and imbued me with a love for the law. In laters years he would jokingly tell mutual friends that I was a convict and I would point out that as my attorney he had not afforded me my Sixth Amendment rights to adequate representation.
Some twenty years later our friendship developed and flourished. We spent much time together, he doing the talking and I the listening. I learned much from these conversations.
He had the voice of an orator and he knew how to use it. He was brilliant and volatile.
He was a gourmet and knew what exotic dishes to order and would instruct the waiter how he would like his food prepared.
He was fastidious in appearance and invariably looked as though he had just stepped out of the proverbial band box.
He had total recall and could quote verbatim from a wide variety of writings.
He was a delightful dinner companion and, when relaxed, displayed a sense of humor which he studiously concealed from all but his close friends.
Although he was not a constant attendant at the Temple, he did have a faith apart from his faith in a Supreme Being -- it was an abiding and consuming faith in justice and in the law and its traditions.
New and progressive ideas attracted him but because he was essentially a skeptic he would research those ideas that he questioned until he arrived at what he believed to be the truth. And having come to a conclusion, he held on to it tenaciously and could become quite caustic with those who disagreed without having a strong and overpowering rationale to convince him to change his mind.
Because he had been associated with honorable political figures such as Leverett Saltonstall, Frederick Mansfield, Henry Cabot Lodge and Clarence Barnes, he had an especial abhorrence for dishonorable politicians, whom he referred to as the pinky ring fakers.
He was devoted to his daughter, Lynne, and in proudly talking about her beauty and intellect, shortly before his death, he said, in a rather pensive mood, "I read somewhere that 'youth is a crown of roses -- old age is a bed of thorns'". And then he added softly, "How true." I felt this to be a sign that for the first time he was concerned about his health.
Jack was a perfectionist and made a point of doing things letter perfect regardless of his personal likes or dislikes. Although he frequently suffered from severe migraine headaches, even during those attacks he could and did write brilliantly in an effective and cogent style.
He rarely accepted hearsay, relying on what he read, heard and saw. Also, throughout all the years he had never, to my knowledge, used profanity or any vulgar expressions.
Jack's drive for perfection was exemplified by the manner in which he dealt with the small loans cases. He shut himself off from all social affairs. He became a virtual hermit, allowing no one to disrupt his study and thoughts. He remained cloistered for months reading and rereading the transcripts, the record, the briefs, and studying the exhibits. It was only after he had done all this that he very meticulously drafted his written opinion. To my knowledge, he spoke to no one outside the court about any aspect of the case until it was published.
His judicial dissents notwithstanding, he was never critical of this court, but, rather, constantly praised it and his associates.
He glowed with pride when a professor from the Columbia Law School told us that he regarded the opinions of the Massachusetts Supreme Judicial Court as some of the best in the country.
He did not, however, have the same regard for the United States Supreme Court -- citing the case of Gallagher v. Crown Kosher Mkt., 366 U.S. 617 (1961), which case, as your honors recall, reversed the finding of this court which had held that the so-called Sunday closing laws were unconstitutional as being violative of equal protection respecting the establishment of religion or prohibiting the free exercise thereof.
Jack said of that opinion: The court (referring to the United States Supreme Court) has created a miracle -- it has transformed a day set aside for religious prayer into a secular day of rest.
After his retirement he made himself available to assist lawyers and judges with their legal problems. He was pleased and felt honored to be appointed by Chief Justice Hennessey to the Judicial Council, where he was unanimously elected as Chairman. We miss him very much. And so, on behalf of the bar of the Commonwealth of Massachusetts, I urge the adoption of the motion to memorialize an outstanding jurist, a true legal scholar and a devotee of what was the best in the proper administration of justice - Justice Jacob J. Spiegel.
Gordon L. Doerfer, Esquire, addressed the court as follows:
The position of law clerk to a Justice of the Supreme Judicial Court provides a unique perspective from which to observe and remember. The person seen by judicial colleagues, by litigants, by the public, by friends and associates is partly seen too by the law clerk. However, no one but the law clerk participates so closely in the daily professional life of the appellate judge.
The role of law clerk is, for most, the first introduction to the world of the law outside the classroom. It is a soft landing into the real world. It's fun because it is near the seat of power -- a wonderful position of sanctuary to look out at the raging battle being waged between real parties.
It is also the first introduction to the traditions of confidentiality and privacy which surround judicial office. The rules are almost unspoken and the purpose they serve is obvious. I can't recall any occasion before today where it ever occurred to me to penetrate the time capsule of my year with Justice Spiegel. But to share some feelings and experiences and thus help honor and preserve his memory, a corner of the curtain can be lifted.
Justice Spiegel had fourteen law clerks, most of whom were able to share their experiences with me in preparation for this memorial and many of whom are here today. It is not surprising that most of us recall the same kinds of things about our former mentor. Each had his own special memories but the composite picture was not much different from the individual view. What we all remember the best are the central attributes of Justice Spiegel's character as revealed in his approach to making decisions and drafting opinions. It was the process of reaching a decision and forging an opinion which was the special privilege of his clerks to observe close-up and which none others were likely to know.
In his approach to decision making and opinion writing Justice Spiegel was logical and precise. He came from a background of great practical experience which he never ignored. He was meticulous and methodical in his approach. And he brought to all that he did a very healthy skepticism.
His opinions for the court inexorably followed the same format. He would first review briefly the procedural history of the case with extensive references to the record, including generous use of direct quotations. He would then take up the arguments of counsel, going straight to the issues which were dispositive of the case. Again he would prefer to rely on the precise phrasing of the issues and arguments of counsel and avoid paraphrasing or restating them. He would take up all serious issues one by one, dispose of them economically and move on to the next. Only rarely would he add a dash of his old time rhetoric but when he did, it sparkled.
He used his law clerks in a way which differed from some of his colleagues but fitted his style well. After a case had been assigned to him he would meet with his clerk to discuss the general outlines of the problems. This would usually include a summary of the facts and major arguments and included a general tentative conclusion -- always subject to revision as thought and research progressed.
But he did not next require a memorandum which weighed all the pros and cons in a neutral style. Instead he wanted a draft opinion which would incorporate all -- but no more than all -- of the relevant facts and arguments. Serious arguments which were offered in opposition to the perceived correct path were to be woven into the opinion and dealt with directly.
The give and take was reserved for oral discussion between judge and clerk. We were expected to engage in vigorous debate and not acquiesce to power of personality or office. But these debates were not to find their way into the opinion except by brief acknowledgment and refutation. Judge Spiegel did not view an opinion as an appropriate vehicle for public agonizing over debatable issues of law. He wanted the law, once decided, to be a clear guide for the public and the bar and not a starting point for further discussion.
By requiring the work of his law clerks to be in the form of draft opinions he was better able to adhere to his philosophy of appellate drafting. It was an economical way to proceed. The clerk's draft would be typed with wide margins and triple spacing. Then the work would begin. Many a long hour was spent directly at Justice Spiegel's side going over the proposed opinion line by line, word by word. The record would be checked for each fact relied upon. The cases would be read before final inclusion. Multiple citations were not his favorites, nor were footnotes. The process was exhausting, but once completed it was rarely necessary to come back with new work. A new draft would be polished, but the work was born out of the initial laborious session.
The product revealed the process by which it was created. It also revealed the core of Justice Spiegel's philosophy of jurisprudence. His way was to adhere as strictly as possible to the structure and boundaries of the controversy before the court as it was structured and bounded by the parties. In retrospect it was very much the approach of the trial lawyer and the trial judge, careers in which he had spent most of his life.
Some of his law clerks recall Judge Spiegel in their own special terms. One said that he had little use for wasted motion and unnecessary work. He reduced his proof to no more than the essential steps in the style of a geometer. Another recalled his habit of forcing his clerks to think through their own ideas and matching them against his. He was a good talker and a good listener and had real street sense about cases, people and the law.
Justice Spiegel's political experiences gave him an appetite for rhetoric which he generally curbed when writing for the court but occasionally indulged when writing dissents. Prior to his joining the court a dissenting opinion was a rare thing indeed. Yet, in spite of his reputation in this area, the reports show only eleven dissents in as many years. As one law clerk put it, he felt that in a dissent he could "let loose and be himself." He felt a license to do this because he knew that he was not giving the law in a dissent -- he was not writing an operative document to be consulted as an authoritative statement of the law. Rather he was expressing a view as to what the court should be doing.
In spite of his dissents Justice Spiegel was fiercely loyal to the court and to his colleagues in his private conversation with his clerks. One of his clerks recalls an incident which illustrates this point. Justice Spiegel wrote a dissent in the case of Commonwealth v. Baird, 355 Mass. 746, 758 (1969), involving the validity of certain laws relating to birth control. Later the judgment of the court was attacked collaterally in the Federal court, which adopted much of Justice Spiegel's reasoning from his dissenting opinion. When the former clerk attempted to congratulate him on being vindicated, Justice Spiegel surprised that young lawyer by expressing anger over the interference by the Federal court. He believed in the principle of finality of the court's opinion and did not think the judgment should be disturbed by such a process even though he had initially disagreed with the decision.
Impartiality is expected in a judge, and Justice Spiegel never strayed from that ideal. One clerk recalled a prime example of this trait in the opinion of the court written by Justice Spiegel relating to the validity of the judicial mandatory retirement law. Justice Spiegel did not agree with the concept of mandatory retirement. He was also the only Justice of the court at the time who would be directly affected by the implementation of the law and forced to retire on its effective date. His clerk at the time recalls nevertheless that he approached the task with the same vigor he displayed when writing on a subject with which he was in total agreement.
The collective memory of his clerks can probably be best captured in the words of one who wrote as follows:
"In short, Justice Spiegel was a marvelous man to work for. He had a sense for justice and for the common man against the large institutions of society . . . and when I ramble off on a new tangent which takes me away from the point of what I am doing I hope I will always hear his gravelly voice in my mind's ear tell me to stick to the case before me and cut out the extra words."
Justice R. Ammi Cutter, speaking for the court at the request of Chief Justice Hennessey, responded as follows:
Mr. Chief Justice and Associate Justices, Mr. Attorney General, Members of the Bar, Friends of Mr. Justice Spiegel.
I am grateful for the opportunity to reply for this court to the tributes to Judge Spiegel, for he was my friend and colleague here for nearly a dozen years. It is now almost thirteen years since we last served together and, except for you, Mr. Chief Justice, there is no sitting judge of this court who served here with either of us.
I shall not repeat the biographical facts, already stated so completely this morning. Instead, I intend to mention aspects, which seem to me to be significant, of Mr. Justice Spiegel's contributions to the work of this body.
The late Judge Kirk and Judge Spiegel became members of this court about the same time, in late 1960 and early 1961. Their appointments followed the sudden death of one former Justice and the long illness and resignation of another. The court thus had available, for a period of months, only five active judges. Despite the two empty seats, the court had succeeded in keeping up with its docket. Nevertheless, the nearly simultaneous accession of two new judges was an understandable relief to all of us.
From the start, each new judge pulled his full weight. Judge Spiegel's first three opinions appeared very promptly after he first sat with the full court. Thereafter, he usually produced any opinion assigned to him within one or two months. He wrote clearly, and with an easy, readable style. Above all, he kept up with his work. That is a merit which only an appellate court colleague can appreciate as fully as the virtue deserves.
Judge Spiegel served here before this court received any help from the Appeals Court's assumption in 1972 of part of the appellate burden. The statute creating that court was enacted only a few months before Judge Spiegel retired and its first opinion was not rendered until some two months after that retirement. During his whole time on this court, there were few matters which could not reach this court as a matter of right and, in general, the appeals heard here were increasing in complexity. The load was a heavy one.
In the late 1960's and early 1970's, significant changes were taking place in the law. There was substantial expansion of the protection (some of it of constitutional dimension) afforded to defendants in criminal cases. Recently enacted legislation in other fields was coming before the court for interpretation.
Reexamination of some old decisional law was being sought. Judge Spiegel's broad practical experience, his past services as a judge of a trial court, and his intuitive good sense, made him a valuable participant in the court's action in each these areas.
In speaking for the court, Judge Spiegel's opinion seldom caused any colleague to dissent. Some of his own dissents have become accepted law with the passage of time. An example of his perception of reasons for change may be found in Commonwealth v. DeChristoforo, 360 Mass. 531, 550-555 (1971). By now, substantial effect has been given to his dissent in that case urging expansion of a defendant's opportunity to examine grand jury minutes.
It was not in dissents, however, that Judge Spiegel's contribution was most significant, but in the day-to-day discussion of a great variety of legal problems coming here in normal course. In that interchange of views, he was a friendly, helpful, and understanding colleague.
Some mention (in addition to that made by Mr. Smith) should be made of his great 1971 opinion in Commonwealth v. Beneficial Fin. Co., 360 Mass. 188. He was charged there with reviewing the work of an extraordinarily able trial judge who, by then, had become his colleague on this court. The cases had been tried over a period of many months by resourceful counsel, and the issues were difficult. Judge Spiegel, during the spring and summer of 1971, devoted over five months to preparing the opinion and dealing with all the many contentions of distinguished counsel. The opinion long will represent a notable instance of rapid analysis of highly complex litigation by a diligent judge.
Examination of the opinions of this and other courts discloses that older opinions tend to be cited less and less with the passage of time. The authors of these opinions, which in their day represented sound statements of developing law, gradually become part of an increasingly shadowy past. Nevertheless, the work of those authors, merged with the work of others, provides the essential foundation of today's legal structure. Each judge in his time makes a significant contribution to that structure. Judge Spiegel's work was faithful to the court's fine traditions and aspirations as developed in the long history of this court. He respected those traditions and strove to augment them and adapt them to new conditions. In performing his duties here, he did so in a manner which earned the respect of the bar. He served well the Commonwealth and this court.
Mr. Chief Justice, I recommend that the motion of the Attorney General be allowed.
The Chief Justice said: We allow the motion that the Memorial presented by the Attorney General be spread upon the records of the court.
The court will now adjourn.