468 Mass. 1109
A special sitting of the Supreme Judicial Court was held at Boston on June 3, 2014, at which a Memorial to the late Justice Joseph R. Nolan was presented.
Present: Chief Justice Ireland; Justices Spina, Cordy, Botsford, Gants, Duffly, and Lenk.
Chief Justice Ireland addressed the court as follows:
Good morning. On behalf of the Justices, we welcome Justice Nolan's daughters, Professor Jacqueline Nolan-Haley; Maura Nolan Brown and her husband Harold Brown; Janice Henry and her husband the Honorable Bruce Henry; Justice Nolan's son, Joseph Nolan, Jr.; and many other family members and friends of the Nolan family who are present this morning. I would also like to welcome back to this court retired Associate Justice Judith A. Cowin. I note the presence of retired Chief Justice Christopher J. Armstrong, Chief Justice Paul C. Dawley, and many justices of the Appeals Court and the Trial Court Departments. I welcome back many of Justice Nolan's law clerks, who are seated to my left. Many have traveled a distance to be here to pay their respects to the man who was undoubtedly a powerful influence on their lives. The court now recognizes Assistant Attorney General Jennifer Miller, who will be speaking on behalf of Attorney General Martha Coakley.
Jennifer Grace Miller, Assistant Attorney General, addressed the court as follows:
May it please the Court: On behalf of the Attorney General and the bar of this Commonwealth, it is my honor to present a memorial and tribute to the late Joseph R. Nolan.
Justice Nolan's career on the bench spanned more than twenty years, from 1973 to 1995. Appointed by Governor Edward J. King in 1981, he served as an Associate Justice of the Supreme Judicial Court for fourteen years, until he reached the mandatory retirement age in 1995. From 1980 to 1981 he sat as an Associate Justice of the Appeals Court. Prior to that, Governor Francis W. Sargent appointed him to serve as a trial court judge, sitting on both the Superior Court and the Brighton District Court. In fact, Justice Nolan is remembered as the first judge to serve at every level of the Massachusetts court system.
Born in Mattapan in 1925, he was the younger of two sons, John and Joe. His father was a school custodian and his mother cleaned houses. He graduated from Boston College High School in 1942. A member of the "Greatest Generation," he served in the United States Navy during World War II. He was a pharmacist's mate third class and served in the Pacific Theater.
Returning home after the war, he went to Boston College, where he studied business and graduated with a bachelor's degree in 1950. While in college, he met and married his lovely wife, the former Peggy Kelly. They would celebrate 66 years of marriage and raise seven children, whom he called his "seven jewels": Jacqueline, Janice, Leonard, Barbara, Maura, Martina and Joseph, Jr. Fellow parishioners fondly recall watching the Nolans file into church, filling an entire pew.
Justice Nolan became a "Triple Eagle" in 1954, when he graduated from Boston College Law School. He began his legal career in private practice, although he quickly turned to public service. He served as an Assistant District Attorney for Suffolk County, and was General Counsel for the Massachusetts Lottery Commission.
In 1965, he began a long and rewarding academic career at Suffolk University Law School, where he taught until 2011. He was a popular professor, cited by his colleagues for his "humor, knowledge, and love for the law." One former student, who later became a judge himself, recalled that Justice Nolan "brought his real world experience, keen intellect and simple approach to the classroom." Another student remembered running into Justice Nolan a few days before he was scheduled to take the bar exam. A few anecdotes from Justice Nolan provided that student "enough emotional nourishment to survive the ordeal." Many others cited Justice Nolan's patience and kindness in the classroom, and regularly named him one of their favorite professors.
In addition to his teaching and judicial responsibilities, Justice Nolan found the time to edit two editions of Black's Law Dictionary and coauthor five books on the law. His work on civil practice and torts, in particular, are regularly cited to this day in briefs and court opinions.
It is no wonder, then, that Justice Nolan's friend and colleague Justice Neil L. Lynch remembers him as an "intense worker." "We used to tease each other," said Justice Lynch, "because he would have only one piece of paper on his desk. That would be the case he was working on, and it would not be removed until he was finished." His own office -- which was next door to Justice Nolan's at the Supreme Judicial Court -- "looked like probably a hurricane passed through while I was working."
Even while an Associate Justice of the Supreme Judicial Court, Justice Nolan never lost his perspective as someone who started in the Brighton District Court. He joked with others that the most powerful judge in the court system was the District Court judge because "that's where the cases begin." And he did not appreciate high-handedness in others. A friend recalled him saying, "When I want to know who people really are, I don't ask the higher-ups. I want to know: How did they treat the janitor? The cafeteria workers? The security guards?"
On the bench, he was a conservative voice and his opinions reflected his deeply-held personal beliefs. Most famously, he dissented in a 1986 right-to-die case that permitted a family to remove a feeding tube from an injured fire fighter who had been in a coma for over three years. He dissented again in a 1994 First Amendment case about South Boston's annual St. Patrick's Day parade. He also revived the Catholic Lawyers' Guild of Boston and served as its president for 25 years. As Cardinal Sean P. O'Malley put it, "His work was guided by core beliefs he held true to as a committed and faithful Catholic."
Although he was dedicated to it, Justice Nolan's life did not just revolve around the law. He loved tennis and summers in Scituate. And, of course, he was devoted to his family: his wife, Peggy, his seven children, 24 grandchildren and 16 great-grandchildren. Robert Crane, a former state Treasurer and long-time friend, said that everyone looked to Justice Nolan for advice and counsel on how to raise a family, "because he was an expert at it."
On behalf of the Commonwealth, I respectfully move that this memorial be spread on the records of the Supreme Judicial Court.
Joseph W. Monahan, III, Esquire, addressed the court as follows:
Mr. Chief Justice Ireland, Associate Justices of the Supreme Judicial Court, Madam Attorney General, members of the Nolan family and friends, I am grateful to the Nolan family for allowing me to address this august body today on behalf of the Honorable Justice Joseph R. Nolan.
Justice Nolan was a man of many talents, a man for all seasons. The common thread that permeates his life was his dedication to his Catholic religion and its tenets. He was a proud son, parent, grandparent, and great grandparent, lawyer, judge, author, playwright, and philosopher. He was a true man of principle.
Justice Nolan was born in Mattapan, the younger of two sons whose father was a school custodian and whose mother cleaned houses. He graduated from Boston College High School in 1942. He joined the Navy and served in the Pacific Theater in World War II. Returning home at the conclusion of the war, he attended Boston College and graduated in 1950 with a bachelor's degree.
When Justice Nolan was a sophomore at Boston College a friend left for dental school and asked him to keep an eye on his girlfriend, Peggy Kelly. He did just that and married her in 1947.
Justice Nolan and Peggy were the beloved parents of seven children: Jaqueline Nolan Haley, Janice Henry, Leonard Nolan, Barbara Bouchie, Martina Alibrandi, Maura Brown, and Joseph Nolan. The judge often referred to his children as his "seven jewels" and his daughters as his "little angels." He was deeply devoted to his family.
Justice Nolan graduated from Boston College Law School in 1954, thereby earning the rare distinction of "Triple Eagle." He started a private law practice and later served as an assistant district attorney for Suffolk County, establishing himself as an excellent trial lawyer.
He was an accomplished legal scholar as well. In 1965, he began a forty-six year association with Suffolk University Law School, initially teaching as adjunct professor of law and, after his retirement from the court, the remaining sixteen years, as University professor of law.
Justice Nolan was the proprietor of the Nolan Bar Review, which he operated for a number of years. His students were the beneficiaries of his considerable experience and his perceptive ability to teach a pithy summary of Massachusetts law, preparing the students to sit for the bar well readied for the task at hand.
However, his prolific legal writing was genuinely awe-inspiring. His day would typically begin at 4 A.M. when he would put pen to paper. He was the author and coauthor of the following five volumes of Massachusetts Practice:
- Civil Practice, first and second editions; third edition, coauthor with his son-in-law, Hon. Bruce Henry, Superior Court Justice;
- Criminal Law, first edition; second edition, coauthor with Hon. Bruce Henry;
- Tort Law, first, second and third editions, coauthor with Laurie J. Sartorio, Esq.;
- Appellate Procedure, first, second and third editions;
- Equitable Remedies, first, second and third editions, coauthor with Laurie J. Sartorio, Esq.
He also authored yearly supplements to each volume.
In the above-referenced Massachusetts Practice Volumes, the "Dedication" would remind the reader of the judge's strong family commitment. He famously dedicated various volumes to his parents, wife, children, grandchildren and great grandchildren, respectively.
Justice Nolan also was a contributing author to the publisher's editorial staff of Black's Law Dictionary for the fifth edition 1979 and a coauthor of the sixth edition in 1990 with his daughter Jacqueline M. Nolan Haley. His daughter Martina Alibrandi was also a contributing author of the sixth edition.
But it is of particular importance today in this place to remember Justice Joseph R. Nolan's tenure on the bench. It was long, distinguished and historical. In 1973, Governor Francis W. Sargent appointed Joseph Nolan Associate Justice to the Brighton District Court. Governor Edward J. King appointed him Associate Justice of the Superior Court in 1978, Associate Justice of the Appeals Court in 1980, and Associate Justice of the Supreme Judicial Court in 1981, where Justice Nolan served with great dedication, courage and integrity for fourteen years. Justice Nolan is the only Judge to serve in all four court departments of the Commonwealth of Massachusetts.
As Associate Justice of the Supreme Judicial Court, Justice Nolan wrote many majority opinions. One of his most notable decisions was the eleven page dissent he wrote in the matter of Irish-American Gay, Lesbian & Bisexual Group of Boston v. Boston, 418 Mass. 238 (1994). This court ruled that the St. Patrick's Day parade in South Boston could not ban an Irish-American gay and lesbian group from marching. The parade organizers appealed to the United Stated Supreme Court which, in a unanimous decision, overturned the SJC ruling and, in effect, reaffirmed Justice Nolan's First Amendment analysis of the nation's commitment to protect free speech.
Of the many awards he received in his career, he was most proud of the St. Thomas More Award from Boston College Law School for "distinguished service in professional and private life." Saint Thomas More prayed that in his practice of law he would always be accurate and honest, never risking the loss of his soul for the winning of a point. Specifically, St. Thomas More wrote, "The clearness of my conscience has made my heart hop for joy." Letter to Margaret Roper from the Tower, 1534, Selected Letters #60 p. 235. The St. Thomas More mantra for integrity was a moral guide for Justice Nolan.
Justice Nolan resurrected the once moribund Catholic Lawyers Guild. He served as their president from 1995 until his death. Justice Nolan was personally responsible getting for many influential individuals, including President George H. Bush and Justice Antonin Scalia, to speak at their annual dinner.
Creating a strong pro-life presence in our community, Justice Nolan was a daily communicant who received the Eucharist with great devotion. He spoke regularly about the importance of understanding sin, grace, and basic morals. Justice Nolan would usually attend Mass and receive the Eucharist more than once a day. His grandchild Timothy asked him one day, "Grandpa, why do you go to Mass and Communion more than once a day?" His answer, "Because I can."
Cardinal O'Malley personally knew Judge Nolan and said "his work was guided by core beliefs he held true to as a committed and faithful Catholic. He balanced his secular life with his prayerful commitment to Christ and the Church."
However, the recitation of Judge Nolan's devotion to family the church and law do not entirely capture a complete picture of the man.
Justice Nolan wrote poems and was somewhat of a playwright. His poems and plays were fraught with humor. I proudly state I have one of his poems framed in my office.
He was an accomplished pianist. Without a note in front of him, every Christmas he led his guests, dubbed as Judge Nolan's pals, in a merry sing-along.
There are those who consider Latin a dead language. It is clear they had never met Judge Nolan. His Latin was impeccable. He could follow any church service in Latin and could identify each and every error the priest made. Fortunately for the priests, Judge Nolan was not a harsh grader.
Even with this hectic schedule and this array of responsibilities he found time to travel extensively. This was rarely a solitary event. His whole family was included in these trips, which inevitably became a learning experience as well.
It is impossible to adequately capture the essence of Judge Nolan by merely reciting his accomplishments. His essence is best captured by a story involving President John F. Kennedy. At a White House dinner JFK once hosted a group of intelligentsia, surrounded by a Nobel Prize winner, scientists, authors and artists. Kennedy at this point was reminded of Thomas Jefferson: President, writer, musician, author and architect. President Kennedy famously remarked to this audience "this dining room has never witnessed such a collection of minds since Thomas Jefferson dined alone." Judge Nolan was our Thomas Jefferson.
Judge Nolan's intelligence and good heart was not confined to these four walls. Those traits resonated throughout the community. All of us who were fortunate enough to have met him have been enriched by that encounter.
I can truly say that the preparation of this tribute to Justice Nolan has been a humbling experience.
Frank C. Corso, Esquire, addressed the court as follows:
Thank you. If it may please the Court, Chief Justice Ireland, Associate Justices, friends, and most importantly, family of Judge Joe Nolan. Justice Ireland, I received a letter from you thanking me for accepting an invitation to speak here today on behalf of the law clerks. The letter was both a surprise and an honor: I had not known that I was asked to appear, and I received it a few days before Christmas. I considered it another of the many gifts that Judge Nolan gave me in my lifetime. I thank you for that.
We started our course together after I was graduating law school, and more than anything else I wanted to be a law clerk. I had one small summer job working for young lawyer named David Mills. He enriched my life with stories about working for Hugh Bownes and being a law clerk. And that's all I knew, that I wanted to be a law clerk.
I interviewed from Miami to Vermont, and every interview I went to I heard a similar theme: that I was from the right geographic area, but I didn't go to school on the right side of the river. The last interview I had was from a judge who said, "I'm going to interview somebody from Cambridge after you. I enjoyed our time together and I'll let you know whether or not I'm going to hire you." That was in 1984, and I continue to check the mail to hear whether I'm going to get that position in Miami, but it's not yet forthcoming.
Somehow (I would say, through divine intervention), I received an opportunity to come up and interview with Judge Nolan. The first part of the interview was with Justice Ruth Abrams, and she told me, "Joe Nolan is going to hire one more law clerk and you can interview with him." I came up to the interview, walked up to the steps of the old courthouse, and I had been advised that this court had never hired a student that had graduated from my law school and had never hired a student that went to evening school. I got into the interview with Judge Nolan and those were the first two facts he let me know, again: "I've never hired someone from your law school and I've never hired an evening student." We talked about my limited experience in the law, and then he turned to a discussion about me as a person. He said, "Well, tell me about yourself." I said, "Well, I came to Boston from New York to go to evening school because I had to work during the day." He said, "Did you have to work to save money?" I said, "No, I have to support my family." He said, "Well, tell me about your family." At that time, we had two of the four children we would have by the end of the clerkship. At that point in time my jurisprudential eloquence elevated well above Cambridge. When I told him that we were going to perhaps have a fifth child, I was a Rhodes Scholar. He told me that I'd be hearing from him, and I'd wait and hope to hear as I had with all the many other interviews I had left. I walked from this courthouse to the summer job I had on Commercial Wharf. When I walked in the door, not fifteen minutes later, the receptionist said, "Frank, there's a Judge Nolan on the phone for you". I answered the phone and he said in his stern, unforgettable voice, "You want that job? You got it." He gave me the job without a letter; the formalities were followed by a letter from Judge Abrams I got back in August 1984 telling me that I was selected as Joe Nolan's law clerk for the '85-'86 term. I've kept this letter for thirty years, in my office; I was so happy to be selected by Joe Nolan to be his law clerk.
In that period of time after this process started, I moved my family to the North End and I worked hard for Judge Nolan, and worked on Saturdays, and wrote decisions -- no, I didn't write decisions, he wouldn't let me do that -- but he allowed me to do drafts of decisions. I would come up, and I had the privilege, through his invitation, to come to this court to spend time with the recall justices that came up to the library on Saturdays to work. And I got to meet Francis Quirico and Ammi Cutter and Benjamin Kaplan and spend time and exchange intellect with those giants on the bench at that time. No one on this bench was on that bench. We had Chief Justice Hennessey, Justice Wilkins, Justice Lynch, Justice Abrams, Justice Liacos -- it was a very bright bench; and that shared experience that I got through Judge Nolan's grace in allowing me to become his law clerk extended through my entire legal career.
Judge Nolan gave me opportunities that made my life possible, made my children's lives possible, made my grandchildren's lives possible, by opening that door. I can likely tell you and recite all of the treatises that he wrote, all of the decisions that I've read that he wrote, but the most important thing that I took away from this clerkship -- and I hope was shared with all of the co-clerks -- was the man we knew as Judge Nolan. My time with him extended over three decades. We never lost touch. We communicated every year. When I left the clerkship and opened my own practice, Judge Nolan walked into my office and he sat and he was at the threshold and he said a prayer. I observed him, the phone started ringing, and it never stopped ringing. He prayed for my success, as he told me, and he gave me that success.
Judge Nolan was a man who knew what he wanted in life and he lived that life. You heard he went to Mass as a daily communicant; he was a devoted, devoted, human being, devoted father. I'm fortunate that I got to meet his "seven jewels" and know his family, and know the Nolan family. When he left the court, he gave me his library. At the time, I thought he just wanted someone to clean it. I did. When he passed away, Mrs. Nolan and I met, and she and her children gave me their library from his home; at that point I might be more certain that they wanted me to help them clean it. I got to go through manuscripts that he wrote and the poems that were downstairs and I boxed those books, and I kept those books, and I made shelves for those books; it's one more gift that Judge Nolan has given myself and my family. I know that every law clerk that served him is enriched by the experience that they had with him.
Judge Nolan lived his life preparing for death. Judge Nolan knew that someday, the Judge would be judged. All of us have that one common denominator that someday it comes to an end. His end was not too early, it was not too late. He spent his time on earth; when he left, shortly thereafter, his wife passed away, as you know. I can only envision that he called down and said, "Peggy, it's everything I've worked for all of my life. Come up and join me." They did that.
We've heard the phrase overused, that people leave big footprints. Judge Nolan left big footprints. Footprints that we should follow, that would lead us to a life that was as great as that man's life. Thank you very much.
Justice Spina read aloud the remarks of Retired Associate Justice Neil L. Lynch, who responded for the court as follows:
Chief Justice Ireland and members of the Court, Attorney General Coakley, Mr. Monahan, Mr. Corso, members of the bar, the family of Justice Nolan, and guests:
First, I want to extend a special welcome to the Nolan Family and to recognize the passing of Joe's wife, Peggy Kelly -- the love of his life -- who passed away in January, just months after Joe's death. I know this has been a difficult time for your entire family, and I want to extend my personal condolences, as well as that of the court. I know that Peggy is with us today in spirit to honor her beloved Joe.
On February 27, 1981, Joseph R. Nolan became an Associate Justice of the Supreme Judicial Court,1 serving in that capacity until he reached the mandatory age of retirement on June 13, 1995.2 We gather today to remember his contributions to this court.
Joe Nolan grew up in Mattapan, attended Boston College High School, graduating in 1942, before serving in the United States Navy in the Pacific theater during World War II. On his return to the United States, he attended Boston College, graduating with a bachelor’s degree in accounting in 1950. He then went on to attend Boston College Law School -- a "Triple Eagle."
In 1947, Joe married his bride, Peggy Kelly, and over the years they became parents to their "seven jewels": five daughters and two sons. The couple bought a house in Belmont where they lived for the rest of their lives.
After graduating with a law degree in 1954, he went into private practice. He later served as an assistant district attorney for Suffolk County and general counsel for the state Lottery Commission.
In 1965, Judge Nolan entered the field of academia, teaching at Suffolk University Law School from that time until 2011. During his more than 40-year tenure as a professor, he coauthored five law books and edited two editions of "Black's Law Dictionary." He also taught a bar review course for most of his judicial career.
Joe's first judicial appointment was as a special justice at the Brighton Court in 1973; he was selected as an associate justice of the Superior Court in 1978.5 In 1980, Joe was chosen to serve in to the Appeals Court, and the next year, in 1981, appointed to the Supreme Judicial Court, where he would serve for 14 years before reaching the mandatory retirement age of 70 in 1995.6 (His last opinion was released on May 9, 1995.7)
As many people know, Justice Nolan had a keen sense of what he perceived to be what was right and what was wrong. He was strongly rooted in his faith -- a man of conviction. But what I remember most about Joe was his great sense of humor -- his booming laugh. He cared deeply for his friends and his family -- we were the beneficiaries of his love and friendship.
I know that Joe would say his greatest accomplishment in life was his family. And "jewels" they are. Each of them is a leader in his or her chosen profession. One is a CEO of a major corporation; another is a professor of law; two are in the finance and accounting professions; one is in advertising; one is in real estate; and another is a special education professional. He was blessed.
I recently read an article that illustrates that great love. In March of 2006, as Catholic Lawyers' Guild President, Joe sat with Supreme Court Justice Antonin Scalia following the Red Mass, and the two men engaged in a lively conversation. Following their talk, Joe said, "I don't like to take a back seat to anybody, but he has me beat where it counts." Justice Scalia had twenty-six grandchildren compared to Joe Nolan's twenty-four. However, Joe said he felt they were "even" because he had six great-grandchildren, and Justice Scalia did not have any yet.8
What you may not know about Joe Nolan you might find surprising. Joe loved hockey and not just watching. He played on a regular basis with friends and family -- well into his eighties -- until Peggy Kelley hung up his skates.
Joe was also an accomplished pianist -- self-taught! He would entertain for friends and family, especially during his annual Christmas party. He would engage his guests in song and laughter. He began his parties at 12 noon, because all would come to a screeching halt at 8 P.M. -- Joe's bedtime.
Joe prided himself on being organized. He worked diligently on his assigned cases immediately following the court's sitting, so that the opinions would be ready for discussion within one month of their argument. His law clerks were expected to adopt that same work ethic in assisting him in researching these drafts. As a result they had excellent training for working at law firms.
He also kept a very clean desk -- free of paper. We were the Oscar and Felix (of "The Odd Couple" fame) of the Supreme Judicial Court. My desk was heaped with paper and always appeared to be in disarray. (Appearances were deceiving -- I knew where to locate any letter, note, or law review article. I made it a point to tell my assistants not to "straighten out" my desk because I would not be able to find anything.) On one occasion when my desk was particularly full, Joe came to see me in my office. Chuckling he said, "You know what they say, 'cluttered desk, cluttered mind.'" I responded, "What does that say about an empty desk?" He roared with laughter.
I have wonderful memories of Joe. Even his strongest critics saw a different side once they met and got to know him. He was a man of passion, wit, and energy.
Joe Nolan: A husband, a father, a judge, a musician, a teacher, a true believer, a loyal friend -- he shares the legacy of St. Thomas More -- "A Man for All Seasons." I am proud to say he was my friend.
On behalf of the Justices of the Supreme Judicial Court, the motion of the Attorney General is allowed, and this Memorial is to be spread upon the records of the Court.
(1) 383 Mass. iii (1981).
(2) 420 Mass iii (1995).
(3) 383 Mass. iii (1981).
(4) Commonwealth v. Haggerty, 383 Mass. 406 (1981).
(7) Garland v. Rosenshein, 420 Mass. 319 (1995).