58 Mass. App. Ct. 1115
June 24, 2003
A special sitting of the Appeals Court was held at Boston on June 24, 2003, at which a Memorial to the late Chief Justice Joseph P. Warner was presented.
Present: Chief Justice Armstrong; Justices Brown, Perretta, Jacobs, Porada, Greenberg, Laurence, Lenk, Beck, Rapoza, Gelinas, Duffly, Cypher, Mason, Grasso, Kantrowitz, Cowin, Berry, Doerfer, McHugh, Kafker, Cohen, Mills, Green, and Trainor; Retired Supreme Judicial Court Justice Benjamin Kaplan; and Retired Appeals Court Justices Gerald Gillerman, Kent B. Smith, Raya S. Dreben, and Rudolph Kass.
Chief Justice Armstrong addressed the court as follows:
Good morning, on behalf of myself and all of the Justices of the Appeals Court, the great majority of whom are necessarily in the well, rather than up here on the bench, I would like to take this opportunity to welcome Mrs. Warner, Jane, and her lovely family, her children Susan and Walter Sullivan, Mark and Susan Warner, and James and Jenny Warner. I welcome particularly all of Chief Justice Warner's grandchildren. I also welcome Jane's sister Nancy Davis, Joan McHugh, and her cousin Maureen Palmer. I welcome, particularly, Chief Justice Warner's grandchildren, because he thought so very, very deeply of you. He loved you so much. You are young to be at a ceremony like this, but if you listen you will hear some of the reasons why your grandfather was so much loved and respected by his colleagues and by the whole bar. So, I invite you to pay attention. I will begin the proceeding in the traditional way by calling on the Attorney General of the Commonwealth, Thomas F. Reilly, to put a motion before the court.
Thomas F. Reilly, Attorney General, addressed the court as follows:
Chief Justice Armstrong, members of the court. May it please the Court: On behalf of the Office of the Attorney General and the Bar of the Commonwealth, it is my honor and privilege to present a memorial and tribute to the late Joseph P. Warner, who served as an Associate Justice and as Chief Justice of this Court.
Chief Justice Warner distinguished himself as a judge in Massachusetts for 27 years. His legacy as a serious, hardworking judge who revered the law and the judicial process will continue to inspire lawyers and judges in Massachusetts for many years to come.
Chief Justice Warner was known as a judge who could, respectfully but quickly, cut a clear path through the thicket of detail, procedure, and argument to the essence of the matter before him. As noted by his son, Mark, one of Chief Justice Warner's favorite phrases in his opinions, which he first used in 1984, was "cleared of the underbrush." Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984). For example, in a 1990 rescript opinion that bore the unmistakable imprint of Chief Justice Warner, he wrote, "Cleared of considerable underbrush and semantic tussle, this case presents a narrow question." New Seabury Corp. v. Board of Appeals of Mashpee, 28 Mass. App. Ct. 946 (1990).
My privilege today, as the Attorney General and as an admirer of Chief Justice Warner, is to address a very broad question: how to best summarize his remarkable life and judicial career. My job is made easier by the fact that Chief Justice Warner would not allow obfuscation or veiled mystery to invade his life or opinions. There was no underbrush, there was no semantic tussle. Instead, Chief Justice Warner was direct and plain-spoken on issues of judicial concern.
However, he was a very private person in a very public arena. For example, his political beliefs were generally unknown, even by his children. It is, then, a tribute to Chief Justice Warner's reputation and abilities that he was appointed to the bench by three very different governors. In 1973 Governor Francis Sargent appointed thirty-six year old Joe Warner as a judge of the Probate Court in Suffolk County. In 1982 Governor Edward King elevated Joe Warner to the Appeals Court as an Associate Justice. In 1989 Governor Michael Dukakis appointed Joe Warner as the third Chief Justice of the Appeals Court, succeeding John Greaney, who had been recently named to the Supreme Judicial Court. Announcing the appointment, Governor Dukakis observed that "Joe Warner has a reputation as a compassionate and accomplished jurist, as well as for having proven skills as an administrator. It is an honor for me to nominate Joe Warner to this position."
From his humble beginnings Joe Warner worked hard all his life to achieve great success as a student, as a lawyer, as a judge and, just as important, as a husband and as a father. Joseph Paul Warner was born in Boston on January 17, 1937, the third child of Joseph A. and Gertrude Rose Warner. Having grown up in Watertown, in 1954 he graduated from Matignon High School in Cambridge. A talented baseball player, he briefly considered trying out for the minor leagues before enrolling at Boston College, from which he graduated in 1958 with honors after majoring in history and government. He then studied for three years at Boston College Law School, from which he graduated, again with honors, in 1961.
Thanks to a blind date arranged by his cousin Maureen, he met Jane Hanron at a Boston College - Holy Cross football game. They were married on August 27, 1960, and became the parents of three children: Susan Warner Sullivan, Mark Warner, and James Warner.
In the fall of 1961 Joe Warner began his legal career as a law clerk to the late Justice Arthur Whittemore at the Supreme Judicial Court. A year later he joined the Boston firm of Hemenway and Barnes, where he became a partner, specializing in a probate court practice until his appointment to the Probate Court in 1973.
Judge Warner very much enjoyed serving as a Probate Court judge. He valued the comradery of his judicial colleagues and the court personnel. Judge Warner was especially close with Court Officer Joe Hamelburg who would often attend Mark and Jim Warner's baseball games. Sometimes the boys had to spend time with Joe Hamelburg in a courthouse conference room when the safety of the judge's home was being threatened by an unhappy litigant. One time, a ball came flying out of the conference room into Judge Warner's packed courtroom. Judge Warner peered sternly from the bench as the ball was retrieved.
In late 1982 Governor Edward King elevated Joe Warner to the Appeals Court as an Associate Justice, where he filled seat number five, formerly occupied by one of the court's original appointees, the late Reuben Goodman. In his almost twenty years on the Appeals Court, Justice Warner earned a reputation as a prolific writer of decisions and as a superb editor of drafts circulated by his colleagues. He produced a total of 1,163 written decisions, of which 207 were signed opinions and 79 were rescript opinions.
Justice Warner loved the intellectual challenge of the work on the Appeals Court. Justice Warner appreciated good lawyering and good legal writing. But he would not punish a party because a lawyer wrote a bad brief. Nor would he reward a party because the lawyer had a good reputation. For Justice Warner, his role as a judge was to make an independent and intellectually rigorous determination of the correct answer to the issues before the court. If that meant, as it usually did, that he had to master the record below, conduct his own legal research, and analyze the issue in light of the record and the research, so be it.
Justice Warner took great pride in his legal scholarship. He was very confident of the accuracy and rightness of his opinions. On the few occasions when his decisions were overturned by a higher court, he was respectful of the process but no less confident that he, and not the court above, had made the right decision.
Justice Warner recognized that all cases were important, regardless of the financial stakes or issues before him, because each case was important to the parties. For example, the Davidson decision in 1985 was one of his best-known and longest opinions, running more than 15 pages in the Appeals Court Reports. Davidson v. Davidson, 19 Mass. App. Ct. 364 (1985). The critical issue in Davidson concerned the division of property interests acquired after the dissolution of a marriage under the "no-fault" divorce laws.
Off the bench Chief Justice Warner displayed his sharp wit to his friends and colleagues. On the bench, he was all business. Unfailingly polite, respectful, and down to earth, he urged the lawyers, and helped the lawyers, to get quickly to the heart of the matter.
Many judges are tempted to display their wit or their whimsy at the expense of the parties or their lawyers. Not Chief Justice Warner. For example, in In re Verrill 40 Mass. App. Ct. 34 (1996), Chief Justice Warner affirmed the Norfolk County Probate Court's denial of the petition of an incarcerated murderer to change his name to "Jerry Irish Murphy." The opinion has no wry asides, no easy jokes. Instead, the Chief Justice soundly held that an official name change would not be in the interest of public safety because of the possibility of parole for the petitioner.
By virtue of his quarter century on the bench, as well as his work at the Flaschner Judicial Institute, Judge Warner appreciated the common sense and flexibility displayed by other judges. However, he recognized that the paramount allegiance of judges was to the law. For example, in Commonwealth v. Vascovitch, 40 Mass. App. Ct. 62 (1996), Chief Justice Warner vacated the trial judge's nol pros of a motor vehicle larceny charge upon payment of restitution, because the Commonwealth had objected to the dismissal. Despite the rough justice that might have been served, the dismissal violated the Massachusetts Constitution's separation of powers by usurping both the Commonwealth's prosecutorial discretion and the Legislature's power to prescribe punishment for criminal conduct.
Justice Warner also did not let his firmly held beliefs override his allegiance to the law. In both Commonwealth v. LaSota, 29 Mass. App. Ct. 15 (1990), and Commonwealth v. Almeida, 42 Mass. App. Ct. 607 (1997), for example, he reversed convictions of child abuse because the trial court had allowed the introduction of inflammatory but irrelevant evidence against the defendants.
Justice Warner was scrupulous in his attention to detail and the rules and he admired other judges whom he believed also paid close attention to detail, to rules, to form. However, he was not inflexible. For example, in Davidson, he rejected "the wooden application of technical rules of the law of property." Instead, he urged the adoption of "expansive approach, within the limits of the marital partnership concept."
Chief Justice Warner believed that actions spoke larger than words both on and off the bench. Deb Steenland, who is now my Deputy General Counsel, served as Justice Warner's law clerk in 1985-1986. Fresh out of law school, she complained to Justice Warner that the life of a lawyer or a judge seemed so much less momentous than that of a doctor whose skills and decisions could mean the difference between life and death. Justice Warner did not argue with her. Instead, he urged Deb to read a recent decision in which a court had to decide whether or not a critically ill patient could receive necessary medical care.
He also never directed his sons to follow him in the practice of law. Indeed, his son Mark once said to his father, "Being a lawyer is probably the last thing I want to do in life." Justice Warner listened patiently and politely but probably was not surprised when Mark, a year later, entered Boston College Law School. Mark's brother Jim also attended BC Law School and now both are enjoying the practice of law.
After being sworn in as Chief Justice in 1989, Judge Warner noted that he now stood in the "tall shadows" cast by his predecessor Chief Justices, Allan Hale and John Greaney.
He went on to praise his judicial colleagues for their collegiality, stating that he had "never worked with a more highly principled, diligent group of men and women." He also commended the Appeals Court staff for its "spirit of family." During his tenure as Chief Justice, he continued to foster those spirits of collegiality and family, qualities that continue to characterize the court. Almost immediately after taking office as Chief Justice, he faced two challenges — a shrinking budget and the addition to the court of four new associate judges, bringing its membership to fourteen. Both challenges were met successfully. The budget problems were overcome and the four new judges were quickly welcomed and accommodated.
Off the bench, Joe Warner gave freely of his time and energy to the institutions that had made his success possible. With the possible exception of the Flaschner Judicial Institute, the organization that was closest to his heart was his alma mater, Boston College. Proud of being a Double Eagle, he served as chair of the Boston College Estate Planning Council and as president of the Boston College Alumni Association. In 1990, he was very pleased to receive the St. Thomas More Award from the Boston College Alumni Association.
At the law school, he taught probate practice and also served as president of the Alumni Association. Three years ago, he was awarded the law school's Founders Medal, the highest honor awarded by the school. In making the award, the law school recognized the three hallmarks of Joe Warner's life: service, integrity, and scholarship.
Grateful for the opportunity to serve on the bench, he was an active leader of the Flaschner Judicial Institute after it began its important work of educating and training judges in 1978. You will be hearing more about that later this morning from Robert Brink. Chief Justice Warner also served on the Executive Committee of the Council of Chief Judges of Courts of Appeal, a national group sponsored by the American Bar Association.
Grateful for the role of community in shaping his life, Joe Warner served Dedham, where he and his family lived for nearly forty years, as an elected town meeting member, selectman, chair of the Zoning Board of Appeals, chair of the Endicott Estate Commission, and Little League coach. He also devoted many hours to the public library in Dedham as well as served in many capacities at the Boston and Massachusetts Bar Associations, the Boston Legal Aid Society, St. Sebastian's Country Day School, and Newton Country Day School.
In 1992, Joe Warner suffered such a serious stroke that many people doubted that he would ever walk again, let alone return to the bench. The stroke was an especially cruel blow to someone like Joe Warner who took such pride in his fierce independence. Yet a year later he returned to the Appeals Court where he continued to serve with distinction until his retirement six years later.
Much of this remarkable recovery can be traced to his determination and his commitment to the court. However, full credit must also be given to his family and especially to his dear wife, Jane, who selflessly devoted herself to both caring for Joe and prodding him, pushing him, cajoling him into working even harder at his recovery.
In addition, without the support of his colleagues on the Appeals Court, Joe's return to the Court would have been more problematic. In an endearing testament to their respect for their Chief Justice, the other Justices, without complaint, took on more administrative responsibilities to help keep the Court running in Joe's absence and to smooth the way for his return.
On February 1, 2000, Chief Justice Warner retired, having served for more than ten years as Chief Justice and for almost twenty-seven years as a judge. By this time, he and his wife, Jane, had been spending much of their time at their second home in West Dennis. It is there that he passed away on June 15, 2002.
It is an honor for me to be here today to pay tribute to Chief Justice Warner, a truly outstanding judge whose commitment to public service is an example to the entire legal profession. On behalf of the Bar of the Commonwealth of Massachusetts, I respectfully move that this Memorial be spread upon the records of the Appeals Court.
Attorney Miriam Altman addressed the court as follows:
I am Miriam Altman and I am honored to have the opportunity to address this distinguished audience here today.
I met Judge Warner in 1983 when I was interviewing for a position as his law clerk. I was twenty-six years old, I was wearing my best suit, I wanted the job and I wanted to make a good impression. During the interview, I was feeling pretty confident until Judge Warner asked me the following question. He said: "So, you go to Georgetown University Law Center. Tell me, how did you pick Georgetown?" I paused, took a breath, and replied, "Well, Judge Warner, I didn't exactly pick Georgetown. I guess you could say Georgetown picked me. It was the only school I got in to." The interview ended shortly thereafter. My hopes were dashed and I flew back to D.C.
To my great surprise, not very long thereafter, I was offered the job. When I came to work in September of 1984, Judge Warner took me into his office and told me, "The reason I offered the job to you was because when I asked you the question about how you ended up at Georgetown, you told the truth." What I learned the first day on the job was that Judge Warner valued honesty.
I worked on many cases the year of my clerkship. However, the very first one I worked on and the one I found the most remarkable, involved a meritless criminal appeal by a public housing employee who had been convicted of accepting bribes to move the names of applicants for public housing up the list. What struck me about the case was not any of the legal issues but the amount of the bribe: twenty-five dollars to have your name moved up the list. What that case taught me is that corruption is so cheap and so easy. And what I learned from Judge Warner the year of my clerkship is that honesty and integrity are so dear.
Judge Warner's honesty and integrity unfolded before me in many ways that year of my clerkship. Behind his twinkling eyes and thick grey hair was a mind as keen as any I have known. And as I worked with him I had the chance to closely observe how he reasoned through a case. He was always impartial. He was never rigid in his thinking and he had the intellectual confidence to occasionally change his initial opinion as he wrote his decisions. He decided each case on the facts not on the basis of any political agenda. He was always rigorous in examining legal arguments. He was always honest and fair in his decisions. He had a profound effect on the way I and his other law clerks came to view the judiciary.
Until very late in his life, all Judge Warner's law clerks would gather together once a year to have lunch with him. Soon there were so many clerks attending the annual lunch that it became an intricate game of political maneuvering to end up sitting next to the judge or at least within ear shot. I would like to submit to you that we were mature professionals who were not competitive for his attention during those luncheons but I cannot. We came year after year because we admired him and all he stood for. We came because we felt affection and gratitude toward our mentor. We came because we just liked him and enjoyed his company.
As a mentor, Judge Warner was always kind and constructive with his criticism. He was just as respectful of a clerk's views on a case as he was of her views of the Red Sox.
Later in life Judge Warner weathered the physical challenges he faced with the same grace, dignity and at times humor — humor, believe it or not — that he brought to his professional life. Despite his physical difficulties, he worked tirelessly to complete cases at the level of perfection he had always demanded of himself. We were awed by his strength, resilience, and refusal to give up. He taught us the importance of perseverance, and the need to strive toward excellence despite adversity.
Judge Warner taught us that it is important to balance work and family. In his later years, once a week, he and his wife took care of their granddaughter. She would come to his office and climb all over his chairs as he finished discussing a case with his clerk. It was inspiring to have a man of his stature discussing some fine point of law while a toddler ran amuck in his office. And it was with much relish that he would describe the exploits of his youngest grandson, whom he called "the baby-faced assassin." In a world where professional commitments can begin to engulf us, Judge Warner taught us to maintain our sense of balance.
Judge Warner had twenty-nine law clerks in all. He inspired each one of us with his passion for justice. He made each one of us a better lawyer and a better person. For each of us, with our new J.D.s in hand, it was our first experience in the world of law, ready to be imprinted with his professionalism, his ideals, and his values. His passing was a loss to each of his clerks. We understand that we are part of Judge Warner's legacy and we are collectively committed to passing the torch.
At the end of my clerkship, I told Judge Warner that it had been the best year of my legal career. I think Judge Warner was so taken by the compliment that he did not realize that at that point it had been the only year of my legal career. But I think that today, I and Judge Warner's other law clerks can all say that no matter what we have accomplished professionally since then it remains the best year of our legal careers.
Attorney Robert J. Brink addressed the court as follows:
May it please the Court: It is a special privilege to support the Attorney General's motion. I am happy that the sun has finally come out as we celebrate the memory and accomplishments of Chief Justice Joseph P. Warner. Let me focus your attention on his concerted efforts to uplift the professionalism of the Massachusetts judiciary through continuing judicial education.
In 1984, the first time I met the then-"Justice" Warner he asked me to call him Joe. Out of respect for the office, his accomplishments, and the difference in our ages, I called him Justice Warner. Yet, his gracious and unpretentious gesture to put me at ease provides insight into what kind of person — and judge — Joseph Warner was.
He was low-key, unassuming and friendly. As a judge, he was, I believe, a perfect person to wear the robe — focused not on his personal stature (call me "Joe") but on his sense of duty, and his understanding that improving the performance of individual judges had a direct impact on the quality of justice.
Chief Justice Warner (I still can't call him "Joe") led the Franklin N. Flaschner Judicial Institute for well over a decade. I served with him as Executive Director for most of that time. He was my boss.
In 1978 when the Institute was founded there was little, if any, organized judicial education. One senior judge joked that the training he had received amounted to the following simple advice intended to maintain composure on the bench: "Before putting on your robe . . . make sure you visit the lavatory."
Largely fueled by the energy and enthusiasm of its founding members, the Institute flourished for several years. A spirit of volunteerism provided vitality, but it did not pay the bills. By the time Chief Justice Warner was elected as chairperson of the Institute's governing board in 1983, the Institute had narrowly escaped dissolution and was, to use his word, "floundering." The few programs the Institute could afford were excellent, but they were sporadic and sparsely attended. There was no overarching curriculum or unifying educational philosophy.
To survive, the Flaschner Judicial Institute needed a leader who could marry the aspirations of mission with the thankless details of good management. It found that person in Chief Justice Warner.
He worked, behind the scenes and tirelessly, to ensure that the Institute fulfilled its promise to be of meaningful assistance to each, individual Massachusetts judge. Under his direction, the Flaschner Judicial Institute created an environment in which professional development became the norm, not the exception. It not only helped "raise the standards" of judicial professionalism in Massachusetts but it also "set the standard" for judicial education in the United States.
This was not an easy task. The culture of the courts had not historically embraced continuing judicial education. There had been a notion that every judge was the "Chief Justice" of his own courtroom. Leaving judges alone to do justice may have been in deference to judicial independence, but it left many newer judges isolated.
Continuing education was sometimes treated with suspicion. Early in his judicial career, Judge Warner and five or six other newly appointed Probate and Family Court judges (notably Judge Mary Fitzpatrick, who would later become Chief Justice of that court, and Judge Ernest Rotenberg, who would also become involved with the Institute) gathered once a month, in the evenings, to promote collegiality, discuss cases and compare notes. As amazing as it may sound today, some court administrators looked, as retired Chief Justice Fitzpatrick recently told me, "askance" at this "splinter group." Chief Justice Warner always chuckled that influential senior judges thought it was some sort of "cabal."
So, when elected to lead the Institute in 1983, Chief Justice Warner had his work cut out for him. I do not believe that the Institute would have done well if it had a new chairperson every year, as is done with many organizations. It needed consistency and continuity.
Luckily, Chief Justice Warner took over with a sense of ownership. He oversaw all aspects of the Institute's operations and for nearly ten years was in almost daily contact with me, or the Institute's other staff person, Marybeth Dwyer. He was interested and involved in the details. He found the time to read (and edit!) everything, even after he became Chief Justice. He worked on (and for years attended!) almost all of the Flaschner Institute's programs, most of which were in the evenings. He enjoyed the collegiality.
I fondly remember the hours I spent with him, first in the cramped 11th floor office (next to Justice Kass and now occupied by Justice Trainor) and, later, in the much larger, newly renovated lobby of the Chief Justice. He loved that office, but he could not resist, in bemusement, telling of how the State's contractors had built an internal system of gutters (replete with a drip pan) within his office because the building leaked. We spent years working together, often over lunch (which for him seemed always to be tuna on wheat with a diet coke) figuring out what programs should be offered in each academic year, who would teach evidence?, judicial writing?, the annual appellate year in review?, what were the "hot" cases?, what kinds of sensitivity training should the Institute offer judges?, was it possible (yes it was!) to have regular bench/bar conferences?, what practical course materials could the Institute produce to help judges on the bench?, how could we ensure that all the Institute's programs are balanced and objective?
These "lobby conferences" were sometimes personal. His youthful love of (and I gathered talent for) baseball; law schools days (his pride in his study group and some of their pranks); experiences as a trial judge (he didn't like whispering "side-bar conferences," thinking that court proceedings should be as open and public as possible). Of course, we talked of families — especially his wife and their children, schools and weddings, and first grandchildren. My wedding and first child (now thirteen). He listened patiently, and indulgently, first to the nervous groom and then to the excited young parent. He would tease me in an avuncular sort of way. Knowing of my Scottish heritage, he called me "MacBrink" when the subject came to money. It was a tease, and a compliment that I treasure today, because we dug the Institute out of debt and started putting money in the bank. (But that's another story.) In later years he poked good-humored fun at my obsessive and compulsive use of the phrase, "self-help judges' organization," when describing the Institute in every conversation, funding proposal, and newsletter. When the Boston Globe did a feature story on the Institute this past winter, and described it a "self-help" organization, I immediately thought of Chief Justice Warner. For me, that phrase (and countless other associations) now always triggers fond memories of him.
Dare I tell you that much of our conversations also involved judicial politics? Chief Justice Warner often told me that the hallmark of a true educational organization is academic freedom. He felt strongly that the Institute should work in concert with, but not as an arm of, the judicial hierarchy. Remember, the Massachusetts judicial system has ten Chief Justices. Need I say more? There is no doubt that the personal identification of the Institute with Chief Justice Warner's "hands-on" reputation helped ensure it freedom to pursue its academic goals.
And Chief Justice Warner articulated ambitious goals; goals on which the Institute still sets its sights. The Institute strives to promote the highest possible standards of judicial professionalism. Its annual curriculum addresses all aspects of a judges' professional development, at all stages of his or her career. Although there is always room for new initiatives, and particular courses might change from year to year, programs were (and are) annually developed to fit certain of his "core" categories. There are programs for new judges. There are programs for all judges on substantive law. Annually, there are courses that focus on judicial ethics, courtroom control, and the judge's "presiding" role. There are skills training courses, programs on "judicial writing" and the like. There are also sensitivity and other programs that expose judges to the many pressing — and vexing — social issues, which, inevitably, end up in court.
Writing in 1998, on the occasion of the Institute's tenth anniversary, and after he had been at the helm for five years, Chief Justice Warner reported that the Institute followed these principles and produced twenty-seven programs, almost three a month. The programs were no longer ad hoc, nor were they spottily attended. In a State with no mandatory judicial education, the real accomplishment was the number of judges that the programs attracted. With some pleasure, I'm sure, Chief Justice Warner reported that eighty-seven per cent of the Massachusetts Trial Court had voluntarily participated as either students or faculty.
How were all these programs done? Chief Justice Warner had a hand in all of them, but it was not a one-man show, as many in this room know. Nor did he want it to be. In many ways, large and small, he made sure that the Institute was an organization of judges, not an organization for judges. In the early years he personally enlisted (and frequently conscripted) judges to use their off-court time to plan or teach programs. But, as the years progressed, judges from all courts, and all corners of the Commonwealth, were routinely volunteering program ideas, teaching courses, preparing materials and pushing the judicial-education envelop.
Indeed, under Chief Justice Warner's leadership, the Flaschner Judicial Institute provided an outlet for Massachusetts judges to show that they were leading the nation in judicial education. The Institute's 1989 video, Massachusetts Judicial Conduct and Protocol: A Primer for Newly-Appointed Judges, purchased by twenty-two other States, was the first of its kind in the country. Judge Warner served as producer and moderator.
The 1991 New England Judges Conference on Environmental Law was, according to The Wall Street Journal, "the first of its kind and . . . a prototype . . . elsewhere in the country." The 1992 All Court Conference on Gender Issues was, according to the National Association on Women, as noted The Boston Globe, "the first time a state brought its entire judiciary to deliberate on gender bias issues."
Several years later, the All Court Conference on Racial and Ethnic Issues won the American Bar Association's prestigious Partnership Award.
Subjects of other "firsts" include courses on Hate Crimes, HIV-AIDS, Substance Abuse, an award-winning program on domestic violence, and other topics too numerous to mention. Why, in a talk that is supposed to be an airy tribute, do I give you all these details? Because Chief Justice Warner, the man, cared about the details and worked tirelessly on the management of the Institute and all its affairs.
Why did he dedicate himself to these often-anonymous tasks? Because Chief Justice Warner cared about justice. He was not sentimental and he did not often talk about justice in the abstract. He believed that the quality of justice depended on the quality of the individual judge. "Even if our court system was a model of modernization," he wrote in the midst of the court reform debates of the early 1990s, "it would not relieve judges of their solemn responsibility to stay abreast of the law and to adjudicate cases involving individual rights and intense community interests with ability and objectivity." He knew and experienced the challenges individual judges faced and how they were handicapped without help.
In 1990, the Flaschner Judicial Institute won the American Bar Association's "State Judicial Education Award," given to the nation's best educational organization serving a State judiciary. Chief Justice Warner certainly was pleased with that and other awards (one of which named him directly), but I think he had a deeper sense of accomplishment two years earlier, when his friend and former colleague on the Probate and Family Court, a member of the "cabal" that I had mentioned earlier, Judge Ernest I. Rotenberg, was named by the ABA as "the most outstanding Trial judge in the nation" of a court of limited jurisdiction. When asked by the Boston Globe how to become an outstanding trial judge, he credited the Flaschner Judicial Institute with playing a prominent role in his professional development.
The recognition for his friend and colleague confirmed Chief Justice Warner's conviction that enhancing the educational standards and professionalism of our State's judiciary would be a certain path to judicial excellence.
Judges continue to follow that very same path; a path that "Joe," Joe Warner, unselfishly excavated and paved. We all owe him a debt of gratitude for his noble dedication to the service of others, which is the hallmark of a great judge and a great man.
Retired Appeals Court Justice Rudolph Kass addressed the court as follows:
Did Joseph Warner always have silver hair? His so splendidly capped a physical presence that emanated authority, experience, wisdom, and capacity for sound judgment. As I remarked on another occasion, he was a casting director's dream of a judge. Sometimes, the exterior of a person disguises or fails to reveal the mind and animating spirit within. In the case of Joe Warner, the external appearance and demeanor accurately reflected the man within: meticulous, intelligent, careful, strong, caring deeply to get it right, and a will to succeed.
To set the record straight, Joe Warner was not born with silver hair (and certainly not a silver spoon). There is a photograph of him in a 1982 Lawyers Weekly Guidebook, wearing judicial robes and a severe judicial mien. The mouth is unsmiling; the hair is black.
This morning I wish to speak largely to Judge Warner's judicial persona and achievements. As you have heard he prepared for the law at Boston College Law School. There he was uncommonly disciplined, thoughtful, and ambitious about his work. He meant to succeed and did. He was, prophetically, case editor of the law review, then called the Boston College Industrial and Commercial Law Review. At law school, Joe ran with a pack destined, as he was, for achievement and the establishment. His classmate-friends included, William Bulger, prophetically, the legislation editor of the law review, Charles Ferris, Anne Jones and Robert Popeo. His closest friend there was Kenneth Joyce, now at the Buffalo Law School.
Joe Warner's first step on the judicial path, which I doubt he was following consciously at the time, was a clerkship with Justice Arthur Whittemore, from whom he learned the near vanished art of treating thoroughly the main point of a case and then a sweeping: "We have considered all the other points raised by the parties and they do not require discussion.
George Kidder, the hiring partner at Hemenway & Barnes in 1962, thought Joe Warner "a good catch when I got him." So it turned out. Joseph Warner, the practitioner, displayed the care and thoroughness he later brought to his judicial work. He quickly earned the confidence of his seniors who found that the end product of an assignment to him was going to be accurate and complete. He had a very good and retentive mind — talent, of course, never hurts. There was regret at Hemenway and Barnes at his parting for the Probate Court eleven years later. It is a hopeful sign when people are sorry to see you go.
As a judge, Joseph Warner has three manifestations. The first as a judge of the Probate Court. There was strength in that field of the law at Hemenway & Barnes, although Joe had not been confined to it. One bounced around more forty years ago. Joe would recall with some pleasure becoming enmeshed in the administrative law problems of Shopper's World in Framingham, a wonder of the retail world at the time. See, as a sample, Shoppers' World, Inc. v. Beacon Terrace Realty Co., 353 Mass. 63 (1967). That work exposed him to municipal politics, for which, as we have heard, he acquired some taste. On the Appeals Court he had occasion to apply the experience he had acquired as a member of the Board of Appeals of Dedham and later as a selectman of that town. He learned not only the mechanics of local government, and the statutes that designed it, but what emotions and interests move the individuals who operate the levers on the machinery.
Practice before the Probate Court when Joseph Warner came to that bench was frequently characterized by less than submissive adherence to statutes and court rules. There could be cronyism and a certain excess of pragmatism. Judge Warner brought to his judicial role the disciplined and informed standards he had always set for himself and demanded those standards of lawyers who appeared before him. That was welcome to lawyers who knew how to prepare their cases and did so. For a sizeable number of lawyers, the prospect of appearing before Judge Warner was daunting. He expected professionalism. When he spotted talent, he nourished it through the power of assignment that a Probate judge then had. He liked to mentor promising lawyers but took pains to conceal from them that they were being mentored.
Some of the business of the Probate Court is formalistic, the uncontested administration of estates or the partition of a tenancy in common; some is full of joy, adoptions — which Judge Warner loved as most Probate judges do; a great deal of Probate Court work deals with humanity at its most troubled: ruptured marriages and ruptured families. Here Solomonic wisdom needs to be routine. But it may not be sentimental. There are principles of law that apply and numbers that control. The Probate Court can be just the place for a judge with discipline, with knowledge, with empathy for the emotionally wounded litigants before him, and with moral passion — all of which Judge Warner possessed. For as long as he could, Joe Warner never missed the semi-annual meetings of the Probate Court judges.
Given his professionalism, it was only natural that Joseph Warner became part of that circle of judges on the Probate Court to whom colleagues would often turn for advice and to explore difficulties. It was equally natural that he was drawn to the continuing education of judges, about which you have heard this morning from Mr. Brink.
The Appeals Court afforded Judge Warner a wider and deeper stage on which to act. The subject matter of the appellate courts in Massachusetts is, of course, eclectic. Occasionally the questions go to the jugular of the human condition; more often they concern its capillaries. This is not to say the cases are insignificant or boring. They are certainly not to the parties and their lawyers. It is also part of the magic of work on this court that each case, no matter how superficially mundane, presents a problem to be solved, and the unraveling of it, the sorting out of the decisive facts, the finding of the law, and the sometimes elusive search for justice become endlessly absorbing.
Joseph Warner's debut in the Massachusetts Appeals Court reports illustrates the point. Sitting with Chief Justice Hale and Justice Cutter, it fell to Justice Warner to write for the court in School Committee of New Bedford v. Labor Relations Commn., 15 Mass. App. Ct. 172 (1983). The case concerned whether the Labor Relations Commission had inherent power, in its discretion, to reconsider a final order. This is not the stuff of the front page or an episode of "Law and Order" on television. Yet guidance about when an administrative proceeding is final bears on the predictability and stability of a component of the legal system. In the end it affects the lives of individuals — in this particular case twelve school teachers.
Judge Warner did not answer the core question he posed in the New Bedford case because, he wrote, the evidence proffered in support of the motion to reconsider could have and should have been introduced at the original hearing. That was characteristic. Judge Warner was disinclined to permit second thoughts to be the basis for extending the life of a legal proceeding. He did not forgive shoddy work. "In these cross-appeals," he wrote in Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. (1991), "there are such gross and pervasive deficiencies, attributable to both parties, in the record presented to us that we are unable to review any but two of the issues." The Zagami opinion continues to be the leading case on the limit of tolerance for an inadequate record-appendix in a civil appeal in Massachusetts.
Justice Warner had a sense of mission about writing opinions that would be helpful to his former colleagues on the Probate Court. He thought there was an Augean stable to be cleaned out in consequence of decades of invincible ignorance about fine points of domestic relations law on the part of the justices of the Supreme Judicial Court and the Appeals Court. His first sally in the field, Robbins v. Robbins, 16 Mass. App. Ct. 576 (1983), was a conventional exercise in appellate deference to the discretion of the Probate judge. There followed his celebrated D-trilogy, Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984) (guidance about the binding effect on divorcing parties of separation agreements not reduced to writing); Davidson v. Davidson, 19 Mass. App. Ct. 364 (1985) (an equitable division of marital assets is not necessarily part of a divorce judgment and the subject may come up later); and DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. 231 (1987) (explicating the relevant consequences that flow from the survival or extinction of a separation agreement following a judgment of divorce). A very short opinion, In re Verrill, 40 Mass. App. Ct. 34 (1996), deserves a nod. Ralph Parker Verrill petitioned to change his name to Jerry Irish Murphy. The court, Justice Warner writing, agreed with the Probate Court judge that when the petitioner has a long record of serious criminal offenses, that was Mr. Verrill's situation, society has an interest in avoiding the risk that he might compile a fresh one under a different name.
In light of Justice Warner's disposition in favor of procedural rigor, his last published opinion, Rezendes v. Rezendes, 46 Mass. App. Ct. 438 (1999), is of interest. He reminds us in that case that the purpose of procedural rules is to accomplish substantial justice and that in the case at hand reopening of the judgment was required so that it might be clarified. I do not suggest a shift by Justice Warner toward the end of his career. Few principles of law, however, are so absolute that they do not have limiting circumstances, and he always recognized that. Among the more fatuous things that candidates for public office lately have been wont to say is that we should appoint judges who declare the law, not judges that make law. This presupposes that the correct rule in a particular case is there for anyone who can read to see. If that were so we would hardly need judges. In fact, groping for the right law to apply in a particular case in the end involves judgment, a process, as Holmes observed, that never is, nor ought it to be, entirely free of the life experiences and values of the judges. Every judicial decision, therefore, however narrow its focus and no matter how restrained the judge, makes law. Justice Warner understood that. Joseph Warner's third iteration as a judge was as Chief Justice of this court. It was not an easy period but he liked the job. The volume of incoming appellate cases kept enlarging the backlog of undecided cases. Chief Justice Warner was personally inventive about the adoption of new devices to tackle the pile of cases, and receptive to the suggestions of his Associate Justices. Too soon into his tenure, there was the stroke. His mobility much impaired on one side, he now applied his characteristic determination to fulfilling his responsibilities. It would not have been possible were it not for the parallel grit of Jane Warner, his wife. She propelled Joe back into the world when pulling inward must have been tempting. She learned how to help him move about, how to adapt both home and work to make it easier for him to get around. She understood that the least restricted environment demanded emotional adjustments, as well as physical ones.
I have sketched a somewhat somber judicial persona of Justice Warner. That is how he was on the bench. Off the bench, he was cordial, very funny and ironic — an altogether delightful companion, and a helpful one when that was what you needed.
An appellate court is a close, intellectually intimate exercise in collaboration. For seven years Joe and I were almost roommates. We occupied adjoining offices that had been carved out of a larger one. We talked about everything: cases, of course, politics, what we read in the newspapers, our families, war stories about our misadventures at the bar, hardware stores, cars, and baseball. Justice Smith will elaborate. I add only that we are the grateful beneficiaries of Justice Warner's intellect and courage.
Retired Appeals Court Justice Kent B. Smith, speaking for the court, responded as follows: Mr. Chief Justice: I wish to thank you and the Warner family for inviting me, with Justice Kass, to speak for the Court in response to the Attorney General's motion.
On a prior occasion, Mr. Justice Cutter, who served with Chief Justice Warner for many years described these memorial exercises very well. He stated that "[t]hey are designed . . . to record and to express gratitude for the contribution which has been made by the one who has gone." Thus, future generations who did not know Chief Justice Warner will learn, by the record made here, of the great contributions that Chief Justice Warner made not only to the Appeals Court but also to the law of this Commonwealth.
The Appeals Court consisted of thirteen justices, including three recall justices, at the time Justice Warner joined the Court in 1982, one year after I had been appointed to the Court. Although the Court was only ten years old, it had already gained a reputation under the leadership of Chief Justice Allan Hale as one of the finest intermediate appellate courts in the country. All of the justices took pride in the reputation of the Court and strove constantly to enhance it.
Justice Warner, with his fine background, was a welcome addition to the Court. He recognized that the legacy of an appellate justice is his or her written opinions. Consequently, he worked hard on his opinions to make sure that they displayed precision of thought. His opinions were always well organized, his sentences flowed in logical sequence and because of his word choices, they had a definite cadence to them.
At oral argument, Justice Warner was always well-prepared. He did not ask many questions but when he did, the questions often brought out the best in the lawyers appearing before the panel. At semble, the conference among the panelists after oral arguments, Justice Warner was always prepared to analyze the issues even in those cases to which he had not been assigned. He was not rigid in his positions and never became argumentative. Justice Warner was particularly helpful on those issues that arose from cases before the Probate and Family Court because of his prior judicial experience in that court.
There is more, however, to being an excellent Appeals Court justice than one's own decisions. Collegiality is an important quality in every court.
In the Appeals Court, collegiality means more than getting along with one's fellow justices. It means being a team player to make sure that all of the opinions issued from the court are of the highest quality. Justice Warner was indeed a team player, his door was always open to his colleagues whenever they encountered difficulties in analysis or research.
Every written opinion of this Court is read by all of the justices before the opinion is published. Justice Warner was a marvelous editor. He suggested not only those changes that were necessary but also those that would strengthen the opinion.
Justice Warner was sworn in as Chief Justice of this Court on December 28, 1989, succeeding Chief Justice John Greaney who was appointed to be an Associate Justice of the Supreme Judicial Court.
As the Attorney General has stated, that period was a difficult time for the Appeals Court because of a rising caseload and budget constraints. To meet the problems of the caseload, four new justices were appointed by the Governor. Each one of the new judges was treated to a detailed orientation delivered by Chief Justice Warner so that he or she could understand the traditions and the operations of this court. The orientations were successful because those four justices, Justices Jacobs, Gillerman, Porada, and Ireland turned out to be splendid jurists.
The Chief Justice was an excellent administrator. He established the Case Management Committee to assist him in reducing the backlog. He insisted on taking his regular sittings even though his administrative duties were great.
His door was always open to all of the court personnel, not just the justices. He knew by name all of the persons who worked in the Appeals Court and would often inquire of their families and their welfare.
After his stroke and period of rehabilitation, the Chief Justice returned to the courthouse to resume his duties. When he would arrive at the courthouse every morning he would be met in the van room by Paulie Walsh, a security guard.
Paulie, for some reason, presumes that everyone places bets on horses or dogs. As he would bring Chief Justice up on the elevator and say to him. "Hey Chief, be sure and play the fifth horse in the third race" or "lets call it a day and go out to Wonderland where the dogs are running." Chief Justice Warner would get off the elevator smiling. And during the day, when he was carrying on a conversation with someone the Chief would suddenly smile. When asked why the smile, Chief Justice Warner would respond "Paul Walsh."
Chief Justice Warner had deep feelings about family and children. While on the Probate and Family Court, he always showed great compassion toward the children caught in a broken marriage.
His love of children carried over to his personal life. He was proud of the accomplishments of his children. Chief Justice Warner simply adored his grandchildren. Whenever they came to visit him in his office, it was a joy to see the happiness on his face especially after his stroke.
The stroke occurred on December 8, 1992. At the time one of the justices observed, "The Chief was struck down at the top of his game." It ravaged his body but left his mind intact. To visit him at the Spaulding Rehabilitation Hospital and see the determination on his face as he fought to walk again, you knew that he would make it back to the Court. One had to admire his courage in his constant fight against despair and frustration.
He was aided in his fight by his strong religious faith. At the funeral Mass for Associate Justice of the Supreme Judicial Court, Paul Reardon, the Reverend Peter Gomes, Professor of Christian Morals at Harvard University said of Justice Reardon that he "owned and loved the faith of the Catholic Church without which he was less than he was and with which he was all and more than we knew." Those words were heard by Chief Justice Warner (I was sitting beside him) and they may be used today to describe Chief Justice Warner's own religious faith.
Justice Kass has already spoken of Jane Warner and her love and devotion she showed the Chief, both before and after his stroke. There is little I can add to his eloquent words.
I am reminded, however, of Ernest Hemingway's description of "courage." He stated that "courage was grace under pressure." Both the Chief and Jane exhibited tremendous amounts of courage during that difficult time.
Another remarkable woman, Paula Snyder, aided and assisted Chief Justice Warner after he came back to work. She was more than his secretary, she was a dear friend to him and we at the Appeals Court are grateful for the help and assistance she gave Chief Justice Warner.
During this address, I have used the titles of Associate Justice and Chief Justice to talk about Joseph Warner. But during his life, he had many titles such as Dad, Joe, Grandfather, son, coach, teacher, and friend.
All of us on the Appeals Court still miss his humor, wise counsel, keen intelligence and his unquenchable courage.
Justice Warner was struck down "at the top of his game." We miss his humor, his wise counsel, his keen intelligence and his unquenchable courage.
My final words are these: Joe Warner was my dear friend and I have struggled to find adequate words to describe this good man. There are words, however, in the Book of Daniel in the Old Testament that I believe convey my thoughts and indeed the thoughts of my brothers and sisters of the Appeals Court in regard to the life of Joseph Warner. In Chapter 12, of the book, Daniel describes the ideal world. He wrote: "The learned will shine like the brilliance of the firmament and those who train many in justice will sparkle like the stars for all eternity."
And that is what our dear brother Joseph did — by his life and example, he trained many in the ways of justice. Truly, he will sparkle like the stars for all eternity.
Mr. Chief Justice, Justice Kass and I recommend that the Attorney General's motion be allowed.
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