September 16, 2005

64 Mass. App. Ct. 1115

Memorial

A special sitting of the Appeals Court was held at Boston on September 16, 2005, at which a Memorial to the late Justice John H. Mason was presented.

Present: Chief Justice Armstrong; Justices Perretta, Greenberg, Laurence, Lenk, Beck, Rapoza, Gelinas, Duffly, Cypher, Grasso, Kantrowitz, Cowin, Berry, Doerfer, McHugh, Kafker, Cohen, Mills, Green, Trainor, Graham, and Katzmann; Retired Supreme Judicial Court Justice Benjamin Kaplan; and Retired Appeals Court Justices Kent B. Smith, Raya S. Dreben, and Frederick L. Brown.

Chief Justice Armstrong addressed the court as follows:

Before we commence with the memorial service, I would like to welcome the Mason family, Barbara, Abby, John's sister, Abbey Brown, and the whole family. I note the presence of Justices Greaney and Sosman of the Supreme Judicial Court, and extend the apologies of Supreme Judicial Court Chief Justice Marshall, who, due to an unfortunate mischance of simultaneous scheduling, finds herself in Newburyport speaking at the two hundredth anniversary celebration of the nation's oldest courthouse in continuous service as such. She is offering my apologies there, as I do hers here. I note the presence of and I welcome retired Appeals Court Justices Elizabeth Porada and Rudolph Kass. I welcome also Mr. David Mandel, who, at the reception immediately following this ceremony, will on behalf of friends of John Mason present his portrait to the court. I welcome Mr. Mandel and the artist, Bonnie Miller, seated behind the Attorney General. You will have a chance to meet her later. I welcome Robert Brink, Executive Vice-President of Flaschner Institute and Executive Director of the Social Law Library, and his capable assistant, John Pedini, who is videotaping these proceedings. And I welcome all the dignitaries, too numerous to mention by name, all the friends of John Mason who honor the court with their presence today.

Thomas F. Reilly, Attorney General, addressed the court as follows:

May it please the court. As Attorney General of Massachusetts, it is my privilege and honor to present, on behalf of the bar of this Commonwealth, a memorial and tribute to the late John Homans Mason.

In trying to do justice to the memory of John Mason, I will tell you about his exceptional intellect, his extraordinary work ethic, and the qualities that made him ideally suited for service to the Commonwealth as a judge. Given his remarkable modesty, I know you would never have heard about these matters from John himself. But that alone would be far from sufficient because, as William Wordsworth recognized, the "best portion of a good man's life" are his "little, nameless unremembered acts of kindness and love."1 John Mason was a good man and his life was full of acts of kindness and love which we will remember today.

It is particularly fitting that this session be held in the John Adams Courthouse, since John Mason was a direct descendant of John and Abigail Adams. He was born in Boston on October 24, 1945. His sister, Abigail M. Browne, believes that in character and intellect, John resembled his grandfather Robert Homans, a lawyer who was an esteemed leader of the Boston Bar. Interestingly, Robert Homans was asked to speak at the special session held in December, 1931, in the Supreme Court Judicial Court to memorialize Justice William Caleb Loring. Mr. Homans described Justice Loring in the following terms: "If he could do something for another, he did it because he cared to be kindly. There was no other reason."2 Those words provide an apt description of John Mason.

John graduated with honors from Harvard College in 1967. After graduation, he joined the United States Army, volunteering for duty in the Vietnam War. He attended Officer Candidate School and served as an advisor to Vietnamese combat troops. He was awarded the Bronze Star, a medal which is awarded to a person who distinguished himself by heroic or meritorious achievement or service. Although he had misgivings about the war, he volunteered because he believed he did not have the right to stay at home while others were in harm's way. His decision in this regard is a telling example. John did not hold principle and honor as abstract concepts to be followed only when convenient. He lived out his convictions, avoiding easy compromise, even in the face of tremendous personal sacrifice.

After his military service, John continued his academic career, enrolling at the University of Pennsylvania Law School. He graduated magna cum laude in 1973, having served as the editor-in-chief of the University of Pennsylvania Law Review.

John clerked for the Honorable Walter R. Mansfield of the United States Court of Appeals for the Second Circuit. From that clerkship forward, John knew he wanted to be a judge.

Following the clerkship, he joined the Boston firm of Ropes & Gray. John became a partner there in 1982, and specialized in labor and employment law, litigation and civil rights. He built a successful practice around the representation of nonprofit organizations, particularly schools.

John was well known within the labor and employment bar as a master practitioner who knew every case and every nuance of the law. While his mastery of the law and his status as a partner at a prominent law firm might have made him intimidating at the outset, his manner of treating everyone -- opposing counsel, the fledgling lawyer, members of the support staff -- as if he or she mattered and as if he or she had something valuable to contribute gained him many admirers and friends. John was especially supportive of new lawyers. David Kerman, a former colleague of John's, recalled his first assignment as a new associate for John, and John's response. Only John could be exuberant over a well drafted cover letter.

The briefs that John filed while he was practicing law are models of clarity, precision and persuasion. A lawyer who is now in the Attorney General's Office and who had the privilege of working with John at Ropes & Gray recently showed me copies of Mason briefs -- red, blue, and green -- that she pulled off her shelves. She said, "These briefs are simply the best, and when I'm stuck, I go back to them because they are so good." I am sure my colleague is not alone in treasuring John's work, and I would not be surprised to find on the bookshelves of various lawyers around the Commonwealth copies of John Mason's briefs.

In 1986, John married Barbara Boeger. They were soul mates who enjoyed sharing the simple routines of family. John's step-daughter Abby admired John for his humility, adored him for his strength, was inspired by his kindness, and was grateful for his loving support.

John was appointed to the Appeals Court by Governor Paul Cellucci on January 30, 2001. As Chief Justice Armstrong remarked at Judge Mason's memorial service at King's Chapel: "No judge ever came to the Appeals Court more prepared to be a judge and to live in that tradition than John Mason. To the court he brought enormous gifts: a powerful native intelligence, a superb education, a deep reverence for the law, professional craftsmanship of the highest order, and expertise second to none in a fast developing field -- employment discrimination law -- that has become one of the mainstays of the appellate docket. To these he added lifelong habits of extraordinary diligence and the family tradition of service to the common weal exemplified by his forebear, John Adams."

As much as he looked forward to becoming a judge, John was embarrassed by all the surrounding attention. In a note he sent to a friend shortly before his swearing-in, John wrote in his small, neat handwriting that he felt "chagrined" about the publicity surrounding his swearing-in, and that it would help his nerves "a lot" (underscored twice) if the friend would attend. He ended by writing that his friend had "always been so very, very, very kind to me." Of course, as we know, it was John who was so very kind to all of us.

Judge Mason began issuing decisions within just a few weeks after being appointed to the court. He was committed to keeping current with his caseload, demonstrating extraordinary diligence. He often worked seven days a week, preparing for upcoming cases, writing decisions and commenting on his colleagues' circulating cases. On many nights and weekends he could be spotted at the Boston College Law School library, located not far from his home.

Appearing before Judge Mason was an appellate lawyer's delight. Indeed, from his first day on the bench, lawyers quickly learned what they could count on if Judge Mason were on their panel. First, they realized that Judge Mason would be unfailingly courteous and polite. Mindful of the role of the advocate, Judge Mason had the ability to ask hard questions and probe further when necessary, but never in a manner that would embarrass or denigrate counsel.

Second, Judge Mason would be intimately familiar with their case. Not only with the arguments raised in their briefs. Not only with the materials in the appendix. But he would also be thoroughly versed with the entire record.

Judge Mason's written decisions demonstrate this command of the record. His opinions frequently contain statements such as, "The defendant's argument to the contrary overlooks the undisputed evidence in the record," which he then lays out in rich detail. A good example of this careful use of the record is his decision in Commonwealth v. Maldonado.3 In Maldonado, the Appeals Court had before it a criminal defendant's claim that the prosecutor's peremptory challenge of the only two black jurors deprived him of his right to be tried by an impartial jury. In his opinion, Judge Mason first set forth the process that the Superior Court should follow to determine if there is a race-neutral explanation for a peremptory challenge when there is a likelihood that a juror is being excluded because of his race. Finding that that process had not been followed in this case, however, did not end his inquiry, since "procedural error in ruling on peremptory challenges is not a per se ground for reversal." Rather, Judge Mason then analyzed the reasons provided by the prosecutor -- that the juror was fifty-five years old and did not have children -- as well as the prosecutor's "feeling" about the juror. Judge Mason found the explanation vague and subjective. Most tellingly, he also noted that the jury questionnaires had been preserved as part of the record in the case, even though they had not been made part of the appendix. Examining the questionnaires, Judge Mason found other jurors who had been seated and who had not been challenged but who shared the characteristics identified by the prosecutor as the basis for her peremptory challenge of the one remaining black juror. Judge Mason therefore concluded that the reasons provided by the prosecutor were not race neutral and that the defendant's conviction had to be reversed. The Supreme Judicial Court, having accepted further appellate review in this case, came to the same result.4

Third, in cases where Judge Mason wrote the opinion, lawyers could count on a decision that was remarkably well-crafted and throughly researched. His opinions take pains to address the arguments set forth by the losing side, and typically point out why reliance on a particular case is misplaced. Finally, lawyers appearing before Judge Mason could count on having their case resolved quickly. Judge Mason heard his first case, Commonwealth v. DiToro, on February 1, 2001. His opinion in that case was issued on March 22, 2001, a mere seven weeks later.5 It was a pace he kept up throughout his tenure on the bench.

Entering public service by joining the Appeals Court allowed Judge Mason to do the work that he loved. John relished the opportunity to engage in exhaustive legal research (without the burden of billing) to find the right answer to a particular legal question. During a far too short judicial career of just three and one-half years, he issued a total of 176 decisions. Fifty-four of his decisions were published opinions and 122 were summary dispositions. Reflecting the breadth of the Appeals Court, he issued decisions ruling on such varied issues as search and seizure, public bidding, torts, zoning, insurance, and workers' compensation.

Although he took his work very seriously, John could be mischievous and enjoyed getting off the occasional zinger. He loved jokes. He loved silly, goofy things. He loved his Newfoundland, Scarlett. He was captivated by Walt Disney, Elvis Presley, and baseball. He once sent an opposing counsel a postcard from Graceland because they shared an interest in all things Elvis. He was rumored to have been at the Rolling Stones concert at the Fleet Center in 2001. Have you ever heard him laugh? It was an unabashed guffaw.

The courage that saw John through his tour of duty in Vietnam was present throughout his illness. Supported by the love of his devoted family and friends, John confronted his illness with rare grace and dignity. He died on July 17, 2004, surrounded by his family and friends.

For many people, my task would now be complete. But for John, what has been said so far does not suffice, because his greatest legacy to us was his extraordinary kindness. I am confident that everyone here today who knew John could tell his or her own story of John's kindness. The story I want to share with you was told to me by Deb Steenland, who is an assistant attorney general in my office and who practiced law with John at Ropes & Gray. While a partner at Ropes & Gray, John successfully represented a client in an employment matter that began with a very involved administrative hearing. John prevailed at the administrative level. He meticulously built a detailed record and carefully positioned the case for the inevitable appeal. There was an appeal, and a second appeal, at which point the Supreme Judicial Court accepted direct appellate review. It was a case that attracted a certain amount of attention: the Governor's legal counsel filed a brief, and the Attorney General's office filed an amicus brief. John asked Deb, who was an associate, if she would argue the case in the SJC. And he asked in a manner that made it seem as if she would be doing him a favor by arguing the case. John got pleasure out of doing all the difficult work to put the case together. Even more, John got pleasure out of giving someone else a wonderful opportunity. He cared to be kindly. There was no other reason.

In "Once an Eagle" Anton Myrer writes: "You can't help what you were born and you may not have much to say about where you die, but you can and you should try to pass the days in between as a good man." My friend, John Homans Mason, lived his life as a good man.

On behalf of the Bar of the Commonwealth, I respectfully move that this Memorial be spread upon the records of the Appeals Court.

Attorney Harvey Wolkoff addressed the court as follows:

May it please the court. I am deeply honored to stand here today as a representative of my colleagues at Ropes & Gray and to speak about Judge John Homans Mason, a man who was a partner and a widely admired lawyer at Ropes & Gray for more than 25 years.

Since this occasion is for Judge John Mason, it is fitting that I start out, as John would, by saying, "Thank you, thank you, thank you," and "I really mean it, thank you." I want first to thank the court for holding this ceremony, allowing us to honor John at a setting he absolutely cherished, the Appeals Court. I want to thank John's friends, colleagues, and family for joining us in honoring him; I particularly want to thank all those who donated money for a portrait of John that will be unveiled at the reception following this ceremony. There were many, many of you who contributed. For that, I want to give you a special thank you -- to each of you, again as John would say (and often did), "You're a good man" and "You're a good woman." I want to thank Robert Brink and the Social Law Library, who facilitated the fund raising for the portrait. Everyone who knew John knows that possibly his favorite place in the world was among law books at the Social Law Library; and a special thank you to the artist, Bonnie Miller, who -- as you will see in a short while -- really captured the essence of John. I also want to thank John's wife, Barbara, for helping to coordinate on the portrait, most importantly for finding some great photos from which the portrait was done.

Before John Mason became a judge, he was president of the law review at University of Pennsylvania, a law clerk to Judge Walter Mansfield of the United States Court of Appeals for the Second Circuit, and then an associate and partner at Ropes & Gray for more than twenty-five years.

At Ropes & Gray, John was a litigator and a trial lawyer who did a tremendous amount of work for private schools, colleges, and universities, including his alma mater, Harvard University. During his years at Ropes & Gray, John tried many cases and argued many appeals in both State and Federal courts. He also participated in three cases before the United States Supreme Court.

John was intensely proud of his work and the results that he achieved for his clients; so were his partners and colleagues. For most of us, that would have been enough to define a career. But, as we all know, John was defined not just by the work itself, but by the way that he worked. John dedicated himself to the practice of law with long hours of rigorous research and analysis. He did so with a remarkable civility and a commitment to the highest standards of ethical conduct. John was also a mentor to young lawyers; he cared a lot about helping them and assisting in their professional development. John also inspired his fellow colleagues to embrace the client's cause as their own, something John himself did with a real passion. No lawyer represented his clients with more tenacity, thoroughness, and sensitivity than John Mason did.

As a testament to the unique balance that he brought to the practice of law, when John was nominated for a judgeship, it was striking how many lawyers came forward to support his nomination. Many were lawyers who had appeared opposite him in cases; that said a lot.

John had a love and a mastery for the law that is unparalleled. When he received notice that one of his clients had been sued, John would sit down and study the complaint, review all the documents, and speak to all the people at his client who were involved. He would do it all thoroughly and efficiently. Then John would do something that was unique: he would sit down and actually write the jury instructions.

This was at the very outset of the case. John would then take the plaintiff's deposition. It was a thing of beauty: John would ask about ten questions. That was all, because he already knew everything he had to prove in the case. He would ask those ten questions, get his evidence, and then "case closed." He knew exactly what he had to prove, and what he did not; he was a remarkable lawyer.

A couple of weeks ago, three of us from Ropes & Gray met with the artist, Bonnie Miller, at a restaurant in Framingham. We all viewed the portrait of John for first time. It was so good that we just propped it up and began to tell stories about John, sitting in that bar having a drink with John Mason there in spirit through his portrait. The stories just came tumbling out.

One of us -- I cannot say who, you will know why in a minute -- told a story about having a big new client in Connecticut, and needing to take the Connecticut bar examination -- not just one part, but both parts, over two full days. For those of you who are not lawyers, taking a bar examination again, especially many years out of law school, for most of us, would not be fun. But John heard about it, volunteered to keep his colleague company, to help him study, and even to take the Connecticut bar examination with him. John took a week of vacation (he had several years of accrued but unused vacation days at Ropes & Gray, but that is another story). Then he joined our colleague, holed up in a hotel in Hartford. They studied by day, and in the middle of the night John would leave voicemail messages for the colleague with hypotheticals. "If two golfers tee off on different holes at the same time and one ball hits an old lady on the course, but we do not know which golfer's ball did it, who is responsible?" As it turned out, John ended up getting the first or second top score on that bar examination. That is why I cannot tell you who the colleague was, because he did not do quite as well.

John was so pumped up when he came to see me after he received his score. He told me that week studying the law was one of greatest weeks of his life. He had a thick book with him which he handed me. It was a bar review course. He asked if I would like to study with him and take the next bar examination in Rhode Island. I think that is only time John was ever kicked out of anyone's office at Ropes & Gray.

Another story we told was how John was working on a litigation matter with a young associate, and as was often the case, John let the associate do the first draft of the brief, then redrafted the whole thing, putting it into his clear, straightforward style. John asked the associate if he would like to argue the motion in Superior Court in Norfolk County, and of course, the associate said yes. John said, "Well, you'll be nervous; I will drive you to the courthouse." Now, anyone who ever drove with John knows that is not something that would make you less nervous. Anyway, they got there. The argument began, and it was not going too well for our side. John sat there squirming, while the associate was doing his best, but it was not going great. Finally, John could not help it. He got up and said, "Your Honor, I really think that what we are saying is right. I really do. Really." The judge ruled for our side from the bench. So, John let the associate drive home.

I have saved a couple of voicemails of phone calls from John after he was diagnosed with cancer. They were at a time when he was very sick. I still listen to those voicemails because they are John. He knew he was very sick, but he was still so cheerful, and the law remained uppermost in his mind. John Montgomery of our office tells a story of visiting him near the end, and all that John Mason wanted to talk about was a Supreme Court case they had done together, the Eastern Enterprises case. John Mason said to John Montgomery, "We should have won 9-0. I never understood a 5-4 plurality in our favor; I never understood it." That is how John was to the end.

He was a remarkable lawyer, and an even better person. We all learned so much from him, more than anyone could ever say. I know we all miss John. We will continue to keep him in our thoughts and in our hearts. Now we have a wonderful portrait of him that will hang in the Appeals Court that he loved so much. Thank you.

Attorney Eric Tennen addressed the court as follows:

It is an honor and a privilege to be able to speak on behalf of Judge Mason's clerks and in support of the Attorney General's motion.

When I began writing this speech, I sought stories and anecdotes about Judge Mason from other clerks. I did not, however, just ask Judge Mason's clerks. I asked my colleagues -- people with whom I also clerked but who did not work for Judge Mason. Judge Mason influenced me and all his clerks immensely, and I will speak to that. But it should be noted that he had an ability to reach out to so many people, even if they were not formally in his life.

Another way I prepared for this speech was by reading the text from prior memorial services. Every clerk spoke glowingly about his or her judge. But every clerk also focused, primarily, on the professional relationship he or she had with that judge. The clerk would recall how the judge was always constructively critical or how the clerk's writing improved after having clerked. Certainly, Judge Mason's clerks all feel similarly. But when we recall working for him, we do not only think of him as a legal mentor, we think of him as a great man.

Judge Mason was unfailingly humble and caring. A colleague of mine remembers Judge Mason as one of the few brave judges who would venture up to our offices on the sixteenth floor. Back when I clerked, a lot of us worked on the top floor of the building. It was a makeshift office, with cubicles, no privacy, and no elevator access. Judge Mason would routinely come up when he wanted to talk about something, instead of calling me down to his office. It meant the world to me, and spoke volumes of him, that he would dignify my workspace, and meet with me amidst the sea of clerks. Apparently, it also made an impression on my fellow clerks. He always had a smile and a hello ready for each of them, as he equally respected his colleagues and mine.

As clerks, just out of law school, we normally came to the court with nothing but awe for our judges and fear that we did not know what we were doing. But Judge Mason was humble to a fault, and it eased us. Whenever he would call me on the phone, he would struggle with how to address himself. Usually, he would stutter, "Eric, er, um, er, it's the Judge." He knew he was a judge and I knew he was a judge. But he did not feel right calling himself that, because the last thing he wanted was to make our relationship seem unequal. His discomfort and inability to label himself was endearing. It was also one of the countless reasons I respected him immensely.

Judge Mason was also caring. He made you feel as if you were the most important part of his life. He always wanted to know how you were, before asking how your work was progressing. Alex Fennel, another former clerk, recalls the morning after the bar results were posted. She went to his office to give him the good news that she had passed. Judge Mason was already in, working away on a case. The judge, characteristically, had books and papers scattered on his desk. His hair was ruffled, as if he had already pondered a legal question for hours, slowly pulling his hair out in frustration. But when Alex walked in, his attention shifted immediately to her. Though he had undoubtedly been focusing one hundred per cent on his work, when she walked in, he focused one hundred per cent on her. And he jumped up, hands in the air, raised his eyebrows, gave her wink, and asked, "So?" When she confirmed that she passed, he was as excited as a kid on Christmas -- perhaps happier for her than she was for herself.

His personality was also very much a part of his judicial temperament and philosophy. As a judge, he was humble and caring. His judicial humility was reflected in the way he never overcommitted to his own initial beliefs. He was willing and able to listen to any argument in an attempt to decide the case fairly. He was strong in his positions, but never hesitated to reevaluate his decisions. To the untrained eye, it may have seemed as if he were wishy-washy. But the truth was that he would struggle to get as much information as possible because being right in the end was ultimately more important than having been right at the beginning. Even in subject areas in which he was considered the expert, in which other judges would seek his advice, he would approach a case as if he had never before addressed the issue.

He was a caring judge, which assured that his decisions were carefully thought out. It was extremely important to make certain that everyone involved in his cases felt as if he or she had been treated fairly and justly. The first time a litigant moved for reconsideration of one of his decisions, he was crushed. He confided in me that he hoped he had not made a mistake. His reaction was immediately aimed at his own fallibility, and he did not pause to think that the litigant's request was without merit (which it was). To Judge Mason, no case was too small; he devoted his utmost effort to each of them. He was able to empathize with every litigant, civil or criminal. It pained him to affirm a criminal conviction, and he worried immensely about the losing side in a civil case. His compassion made his job tough, but it was what drove him to work so hard.

Part of how he assured fairness was by his thoroughness. He was a meticulous researcher, tracking down every citation and relevant source to assure that no stone was left unturned. Though I had just come out of law school, and had substantial research experience, he could find obscure cases and citations at the drop of a hat that I could not. Another colleague recalls how Judge Mason was one of the few judges consistently seen at the law library. He also studied each case until he knew it better than the parties themselves, whether it had a twenty-five or a 2,500 page appendix. Often, at oral arguments, he would cite to documents which the parties themselves could not recall.

His preparation was no doubt assisted by his tenacity. I cannot recall how many times I caught him sneaking into the clerk's office after it had closed so that he could work on his cases before they were even distributed. We used to joke that he was so eager to get started that he would scout out the trial courts and note any appellate issues that might come his way. And of course, there was his editing. He would revise drafts countless times, yet he was never satisfied. Unfortunately, this may be one of his attributes I unwillingly adopted -- I have written and rewritten this speech and, like Judge Mason, believe each draft is no better than the first.

In the end, my most recent memory of Judge Mason will perhaps be my most enduring. After clerking for him, I left Boston for two years, at which point I wanted to return. I had no job leads or prospects at all. I contacted him to see what he suggested. He put me in touch with a very prominent attorney here in Boston and, as I would later find out, gave me a glowing recommendation. On the strength of that recommendation, this attorney helped me find a great job doing exactly the kind of work I sought to do. That much of the story probably seems routine; many, if not all, judges help their clerks out in that manner. But the difference is that by this time, Judge Mason was already quite ill with cancer. Except that I had no idea. He never mentioned it to me. He never hesitated to think of my legal career before his own health. By the time I had my job, and tried to tell him the good news, he was virtually bed-ridden. I visited him twice in his last weeks. Each time, he was eager, giddy to know how my new job was going. To this day, I literally owe my job, and my happiness because that job is so fulfilling, to Judge Mason. But more importantly, I cherish his efforts on my behalf while he succumbed to cancer.

Every clerk who worked for Judge Mason came away with profound lessons. Many legal -- we were all taught that there is no such thing as being overly prepared, that compassion is very much a part of the law, and that a good lawyer must learn to empathize with his clients. But the more profound lessons we learned from simply spending time with a great man. I think Judge Mason made us better lawyers; but I know he made us better people.

Chief Justice Armstrong, speaking for the court, responded as follows:

John Homans Mason, a justice of this court, passed from this life July 17, 2004, ending a gallant year-long struggle with cancer. At the memorial service in King's Chapel on August 4, his nephew, Al Brown, summed up the thoughts of all present: "He was just too young, too briefly a judge, too important to our family, too important to the community, and, most importantly, too good a person to have been taken from us."

John Mason was beyond doubt a brilliant man and a brilliant student of the law. He slipped seamlessly from being a brilliant lawyer at Ropes & Gray to being a brilliant justice of this court. But that brilliance came wrapped in the gentlest of natures and wholly genuine humility and sensitivity and respect for the feelings of others. Justice Rudolph Kass, in a wonderful encomium that became the basis of the Boston Globe's obituary, wrote that "Judge Mason was a quintessential Bostonian, unpretentious, tousled, effusively polite and disarmingly friendly. His gentleness was wholly genuine but it disguised an acute and penetrating intelligence, as well as toughness of mind and spirit when the occasion demanded."

The Attorney General has already ticked off the extraordinary gifts that John Mason brought to the Appeals Court: the powerful intellect, a superb education, a deep reverence for the law, professional craftsmanship honed in the practice of law with a premier firm, and expertise in a fast developing field -- employment discrimination law -- that plugged a relative weakness in the court's collective background. To these he added a compulsion to work and the family sense of obligation to the community passed down from forebears in an illustrious family. He was ready for public service, and he came with unbounded enthusiasm for his new role, making it plain to all that becoming an Appeals Court judge was the fulfilment of a dream.

The paradox of John Mason was that despite bringing to the court so dazzling an array of gifts, he came also with the deepest sense of humility that I have ever seen. He regarded his new judicial office with awe. Of his new station he would say more than once, "I keep thinking I'm in a dream, that someone will pinch me and I'll wake up." At other times he would say, "I keep thinking that someone will discover me, that they'll say, 'What are you doing here, Mason? You're a fraud. Get out of here.'" At first he seemed to stand in awe of us, his colleagues, almost excessively deferential toward our greater experience in the many areas of the law where his own experience was lacking. But, in typical Mason fashion, he set feverishly to the task of making himself expert in each such area, as the needs of the docket presented; so that, by the time of argument, it was we, his colleagues, who stood in awe at his total mastery of the records in the cases we were hearing. By the end of his second year with the court, John Mason was developing expertise in such diverse areas of the law as search and seizure, divorce law, public bidding, torts, real estate, zoning, insurance, criminal procedure, municipal law, workers' compensation law, and the myriad other subjects that crowd the richly variegated docket of this court.

Formidable as John's intelligence was, this prodigious feat of learning was not accomplished without monumental effort. He arrived early in the morning and worked late in the evening. After supper and walking the dog, he would continue studying at the Boston College Law Library. Judges who came in Saturdays or Sundays would often as not find him here, hard at work, undisturbed by interruptions.

No one who knew John Mason could doubt that he loved every minute of it. Indeed, he could not get enough of it. He had only been on the bench four months or so when the clerk of the court, Ashley Ahearn, came to see me about a problem. It seemed the new judge, John Mason, after the clerk's office closed at night, was surreptitiously coming in and rifling through the records looking for the files of cases scheduled to be heard by panels to which he was assigned two and three months later. To Ashley, of course, it was understandably a matter of utmost alarm if case files were missing from the place where they should be found. But how could I discourage one of my judges for being too eager to tackle his work? The spirit of cooperation prevailed: John had his case files, and Ashley had a precise record of exactly where they were. Would that all chiefly problems were so easily solved.

The joy John Mason found in studying the law is nowhere better illustrated than in the story Mr. Wolkoff told about John taking the Connecticut bar examination to support his colleague at Ropes & Gray, who was doing it to save his Connecticut client money.

Of the many anecdotes I have heard about John's career, I appreciate that one because it illustrates so well three separate facets of the man: his love for learning law, his loyalty to friends, and his powerful intellect.

At the Appeals Court, Judge Mason earned a reputation for indefatigable industry, thoroughness, and care. He left no possibly relevant precedent unread, no page of the record unexamined. Judge Mason's written opinions were full of rich detail; they told a story and marched to persuasive conclusions. He quickly made a reputation within the court as a first rate craftsman. In the inner consultations of the court, his intuitive civility and generosity of spirit, even when in opposition, made him a valuable and even loved member of the court.

When Governor Paul Cellucci administered the oath of office to John Mason, his Ropes & Gray colleagues warned us joshingly that we should get ready to find ourselves well thanked. Indeed, we were. "Thank you, thank you," John would say, "I really mean that. Thank you." Justice Phillip Rapoza, writing from East Timor, talked of John's "profuse expressions of thanks, his routine use of the emphatic ('very, very') to express his genuine enthusiasm for whatever he was saying, and his constant, if totally unnecessary avowals of sincerity ('I really mean that'). All vintage Mason." And though this trait made for easy caricature, not one of us doubted it was totally sincere, for John was a man without guile. Doubtless one of the reasons John was held in such affection by law clerks, secretaries, staff attorneys and court officers was that he never failed to thank them for their help, and the genuineness of his gratitude put a little extra spring in their step.

John Mason was larger than life. There is not a person in the Appeals Court who does not have vivid memories of dealing with John, and by the end everyone shared a common feeling that working with John had been one of the great privileges of their lives. The final indelible memory that John left with us all was his courage in dealing with his cancer and especially, when the end was inevitable, in dealing with his impending death. In that final week, instead of withdrawing into a fully justified depression, he did just the opposite, opening his long arms to embrace one last time all whose friendship meant so much to him. His overwhelming motive in those closing days seemed to be to comfort his friends and, of course, to thank us one last time. He was not morose; rather, he would trade war stories, stories of life at the bar (his stories were always self-deprecating); he would analyze the Red Sox; and he told funny anecdotes of going with his father to Saratoga. Before long, the conversation was as it had always been at the brown bag lunches he enjoyed so much, full of laughter.

John was a man who, like Pope John XXIII on his deathbed, could look Death in the eye and say, "My bags are packed." Never once did I detect a note of self-pity. To the end he would say to me, "Chris, I feel like the luckiest man alive." And after reflection, I concluded, "Why not?" John had achieved the professional goal of his dreams. He was surrounded by adoring friends. He had loved every moment of his life. He could face the end without remorse.

In quiet moments, reflecting on the first thirty-three years of the court, and thinking in an institutional sense, probably my deepest regret is that John Mason's judicial career, a career that began so full of promise, ended before his potential could come into full blossom.

The fifty-four published decisions that Attorney General Reilly mentioned will offer persuasive evidence to a reader in future years of John's keen analytical ability and careful craftsmanship. From them the reader will know that John stood in the first rank of a court blessed with many very talented justices. The rich judicial legacy that seemed latent in those early opinions -- a legacy of major contributions to the development of the common law -- was not to materialize due to John's premature death, and this court and law will always be the poorer for it.

But if John Mason's legacy to the court is only hinted at in his published decisions, future readers of the proceedings today will learn that, on another plane, his legacy was immeasurable. It was a legacy that is felt by everyone in the court, judges and staff alike. His rich legacy to his beloved Appeals Court was set by his own example, a legacy of thoughtfulness and kindness, a legacy of the nobility of service, a legacy of legal excellence, a legacy of pride in our work and our obligation to go the extra mile. He renewed our sense of the importance of our work. He left the court a better place. No one captured John's legacy better than his first law clerk, Eric Tennen, who spoke so movingly today. He wrote to John at the time: "Because of you I work harder; because of you I try and treat people better; because of you I believe in myself; because of you I believe in others; because of you I have faith that people will do what is right; because of you I am nothing short of a better person."

I would close by thanking the Attorney General for appearing today and for making the motion that today's proceedings be spread upon the records of the court. I thank Mr. Wolkoff and Mr. Tennen for appearing in support of the motion. On behalf of all the justices of the Appeals Court, I allow the Attorney General's motion.


1 William Wordsworth, Lines Composed a Few Miles Above Tintern Abbey.
2 227 Mass. 589 (1931)
3 Commonwealth v. Maldonado, 55 Mass. App. Ct. 450 (2002).
4 Commonwealth v. Maldonado, 439 Mass. 460 (2003).
5 Commonwealth v. DiToro, 51 Mass. App. Ct. 191 (2001).