385 Mass. 1217 (1982)
A special sitting of the Supreme Judicial Court was held at Boston on April 22, 1982, at which a Memorial to the late Justice Paul Grattan Kirk was presented.
Present: Chief Justice Hennessey, and Justices Wilkins, Liacos, Abrams, Nolan, Lynch, and O'Connor.
Francis X. Bellotti, Attorney General, addressed the court as follows:
May it please the Court: As the Attorney General of Massachusetts it is my privilege and honor to present, on behalf of the bar of this Commonwealth, a memorial in tribute to the late Paul Kirk who served as Associate Justice of the Supreme Judicial Court.
Paul Grattan Kirk was born in East Boston on September 25, 1904. He was the tenth of fourteen children of John and Maud Kirk. He attended my alma mater -- Boston English High School where he was class president and president of the student council. Following his graduation from high school, he entered Harvard College. He received his degree in 1926 and entered Harvard Law School the following September. He received his law degree in 1929 and became associated with the Boston law firm of Hale and Dorr. He was to practice with this firm until he was appointed Commissioner of Public Safety and Commander of the State Police by Governor Joseph Ely in 1934. At the age of 31 he was the youngest to ever hold this position.
Judge Kirk's legal career was interrupted by World War II. As an officer of the 101st Infantry Regiment he served with the 26th (Yankee) Division of the Massachusetts National Guard and the 7th U.S. Army in France. During this time he also served on the general staff of both units and won five battle stars in Europe. Even as early as that, he displayed the qualities of leadership and a very fine sensitivity to people around him and their problems.
In 1934, Paul Kirk married Josephine O'Connell and took residency on Franklin Street in Newton.
In 1937, at the age of 33, Paul Grattan Kirk was named to the Superior Court by Governor Charles F. Hurley. At that time he was the second youngest man ever to have been appointed to the Superior Court. On November 30, 1960, he was named by Governor Foster Furcolo as Associate Justice of the Supreme Judicial Court. He first sat with the court on December 5, 1960. He served with distinction as an Associate Justice. On December 31, 1970, he resigned at the age of 66.
Judge Kirk had a great love for and belief in the law. He is particularly known for the dissents that he wrote. These opinions cannot be easily classified as liberal or conservative, but rather as opinions of a Judge who had great reverence for the Constitution of Massachusetts. Judge Kirk was a man who from a very early age assumed positions of responsibility and leadership, whether it was serving as Commissioner of Public Safety or serving in the military or as a judge. In a slightly more personal sense, I can remember the great admiration I, as a young lawyer, had for Judge Kirk. As much as any judge that I knew, he understood the awesome power that had to be exercised on almost a daily basis. He did not take lightly the ability to affect peoples' lives. To a very high degree, he possessed the attributes of the truly great judge - intelligence, integrity and so important -- compassion. He was a strong enough man that he was not afraid to be kind.
This consistent record of outstanding achievement should serve as an inspiration to all who aspire to public service. Judge Paul Kirk was not only a great judge but equally as important, he was a truly magnificent human being.
I respectfully request and move that this memorial be spread on the records of this court.
Frank J. Murray, Senior United States District Judge for the District of Massachusetts, addressed the court as follows:
Mr. Chief Justice and Associate Justices of this distinguished Court: I owe to you and to the family of the late Paul Grattan Kirk my profound appreciation for the honor of participating in these exercises today.
I welcome the privilege of adding my voice, in the presence of his family, friends, former colleagues and members of the bar, to the tributes of admiration and affection for the judicial attainments and outstanding character of our departed friend and colleague.
The years of warm friendship shared with Paul Kirk include the sixteen years we were colleagues on the Superior Court of the Commonwealth, and it is of all those years of happy memory that I touch upon briefly this morning.
But who can fairly catch and capture in a network of words the essence of a friend's humanity, who was at once a military commander and soldier, a lover of Shakespeare's works and lyrical poetry, an habitual reader of history, a jurist for more than thirty-three years, and whose life had touched the lives of countless others in his journey.
Falteringly, imperfectly it may be, I shall assay the task.
For almost two generations until his retirement from this court in December, 1970, Paul Kirk's public service to the people of this Commonwealth, and his influence for good on so many lives, constitute an outstanding record in the history of Massachusetts.
We look back sixty years to the day in spring 1922 when, as a seventeen year old stripling from East Boston and the Boston English High School, in command of the high school cadets assembled from the many high schools of the City of Boston, Paul Kirk led the cadets on their traditional annual parade through the City's main thoroughfares. It was a day cherished by relatives, friends and neighbors, who lined the sidewalks of the parade route and enthusiastically cheered the young Colonel Kirk and his comrades.
Only a few years passed before weighty responsibilities of office were reposed in him. Shortly after he was graduated from Harvard College and the Harvard Law School, he rose to officer rank in the old 101st Infantry Regiment. Soon followed appointment as Commissioner of Public Safety at age thirty-one, and as a Superior Court Justice in December, 1937, at age thirty-three.
Justice Kirk was appointed to the Superior Court at an age that marked him at that time as the second youngest ever to receive the commission, and thus began a span of more than twenty-three years of devoted and dedicated service.
He came to the Superior Court in the full vigor of young manhood, but his age belied the wealth of seasoned experience with men and their affairs that he brought to the exacting responsibilities of the office. He had enjoyed the allegiance and confidence of a wide circle of friends and acquaintances in all walks of life, at all levels of society, in many fields of endeavor. Few men have been so well qualified by such rich experience to enter upon the demanding duties of the office.
He had hardly time to accustom himself to the ebb and flow of judicial duties when he was faced with a decision at the outbreak of World War II, which for him admitted of but one response -- to answer the high call to duty in the Nation's service. Duty -- "Stern daughter of the Voice of God", as Wordsworth saw it. Judge Kirk served in several theatres of the War with distinction until its close, as the Attorney General has portrayed it in his address.
Upon my appointment to the Superior Court in 1946 our years as colleagues were begun. Before that time our contacts in the law had been minimal. We were associated briefly in the 1930's on the same side of a bankruptcy matter. There are here, I am sure, some who will remember that in the depression years of the 30's, there were few cases other than bankruptcies for the young lawyer. After he took his place on the bench, I tried one jury case before him in the late 1930's.
As a judge of the great trial court of the Commonwealth, he enjoyed a solid reputation for his trial of cases. On the bench he acted with care, with prudence and with courage, and always in control of the courtroom. His practical skill in managing the trial, his firmness and insistence on fair courtroom tactics, earned for him the respect of those who observed his actions -- jurors, witnesses, parties and lawyers. He was abundantly endowed with common sense, and possessed of keen insight into the traits and complexities of human nature. He enjoyed immensely the clashes of champions in the courtroom. He was quick to root out deceit and injustice, and swift in his denunciation of them. He was never insensitive to human frailty, and never lacking in compassion, all of which was evident in the criminal sessions over which he presided.
He had a ready ear and a warm heart when considering the plight Of the "poor little guy": the friendless, the "loner", the unfortunate -- "the still sad music of humanity", in the words of the poet. The depth of his compassion was mirrored in his treatment of cases that reflected the lamentable aspect of our fellow humans. He was obdurate and uncompromising when dealing with cases of cruelty and violence. The Superior Court and its history were once of his great passions. He was quick to assist his associates, and was a wise counsellor to those who sought his advice. He delighted in the friendship and fellowship of his colleagues. He enjoyed their confidence and respect and their high regard for him as a strong member of the court and a leader. He regarded his colleagues as his brothers in every sense of the word. He was emotionally touched when they elected him to the office of Secretary of the Justices, the only elective office of the court.
He was always ready to carry more than his share of the work of the court. He served for ten years until 1956 on the Committee on Bail, and was serving on the Appellate Division for Review of Criminal Sentences at the time of his appointment to the Supreme Judicial Court.
He was the popular choice to be State Chairman of the Superior Court Judges' Centennial Committee to arrange the observance on May 1, 1959, of the Centennial of the court. Under his leadership, a program of exercises was planned for each county, the Executive and Legislative branches of the Commonwealth met in convocation, and a civic dinner was sponsored.
In his speech at Plymouth he traced the history of the court, and sketching the service rendered by the justices who had served since its establishment, reminded his listeners that their service was rendered and work was done
"All without hope of reward or expectation that the laurel wreath will ever crown our efforts".
The last endeavor undertaken by him before he was appointed to the Supreme Judicial Court was the drive he initiated and spearheaded to establish a system of benefits for widows of deceased colleagues. He devoted his efforts to accomplish this goal after learning of the financial plight of widows of his former colleagues, which distressed him greatly.
The campaign was successful. The enabling legislation was enacted on October 26, 1960, and a measure of relief became immediately available to several widows. Fulfilment of this much needed legislative program had been long overdue.
On June 17, 1962, Suffolk Law School conferred upon him the honorary degree of Doctor of Jurisprudence in recognition of his devoted and outstanding service to the cause of justice.
No friend and no colleague of Paul Kirk could fail to recognize the strong and dominant forces interwoven in his character. Deeply ingrained were a strong and unwavering Christian faith in God, love of family and love of country. Out of these wellsprings emanated unflinching moral courage, loyalty to friends, love of neighbor -- traits which marked him throughout all the years of his life.
He was never in doubt as to the ultimate purpose of life, and without show or pretense he adhered with constancy to his religious beliefs as a Roman Catholic.
He was one of fourteen children born to John and Maud Kirk in East Boston. The strong ties between Paul and his brothers and sisters, forged in the joys and sorrows of a close-knit family, were warm and enduring throughout his life.
But it was within the sanctuary of his home and family that the full measure of his faith and love was demonstrated. It was a loving and deeply religious home and family life. The bonds of affection that united him with his family were strong and unending. His devotion to his beloved wife, Dodie, and to his children Kathleen, Paul, Josephine, Maud-Anne and Eddie, whom he dearly loved as husband and father, knew no bounds, and they returned his love and devotion fondly and fully.
His marriage and mine occurred three days apart; our children came on the scene in about the same years. We talked of our families frequently; I was privileged to know of his abiding love and devotion to his family. It was on such occasion that his happiness would be expressed in the line from Shakespeare: "Now is the winter of our discontent made glorious summer by this sun of York".
His life touched the lives of countless others, and lasting friendships were formed reaching back to English High, Harvard, the 101st Regiment - the "Yankee Division", the years with the State Police, his military service, and his years on the courts.
He lived his life believing that all of learning, all of work, indeed all of life, is that we learn, work and live for others.
There was a soft and pliant side of his character, perhaps not readily apparent, but it was there -- solidly in place. He frankly admitted that there were occasions when he was not able to control the outward signs of his emotions. It was not infrequent that his eyes filled and tears ran down his cheeks when tender chords of memory were touched.
His heart and hand were always ready to help his military comrades, whenever his advice was sought and whenever he was needed, and there were calls for assistance that never went unanswered, and acts done that were never recorded. His comrades attended him at the very end.
In the last years of his life he did not enjoy good health, and travel away from home was undertaken only with great difficulty. But there remained one mission yet to be accomplished, and he determined to see to it -- a visit to the little village of Emlagh in County Louth, Ireland, from whence his father at the tender age of fourteen had departed for America, there to make his way in life, and who never returned to the native hearth.
The pilgrimage was undertaken with his sons, Paul and Eddie, in the summer of 1979, and the goal was reached. It was indeed an emotional moment for all three, but especially for the judge. As Eddie described it later: "The floodgates opened wide with a flood of tears of unbounded joy and contentment." The last mission had been accomplished.
We are grateful for the years of association with our beloved friend and colleague who served the people of this Commonwealth with fidelity and honor.
Edward B. Hanify, Esquire, addressed the court as follows:
May it please the Court: It is a privilege to participate in this court's noble tradition of recording the life and attainments of its deceased justices. Yeats's well-known epitaph "Cast a cold eye, On Life, On Death, Horseman, Pass By", seems cold and cheerless to members of our profession when we remember our own departed brethren and members of the judiciary. Certainly no one can "cast a cold eye" on the complete and fruitful life of the jurist we memorialize this day.
Paul Grattan Kirk was in his early thirties when, as a justice of the Superior Court, he presided over a jury case in which a young lawyer, then not long admitted to the Bar, and not many years his junior, appeared for the plaintiff. The youthful Counsel had a very natural curiosity as to the attributes and demeanor of a very young judge who had recently become his father's colleague on the Superior Court. As a college student, the young lawyer had occasionally waited for his father in the antechamber of the Lobby of the Superior Court, and watched such mature figures as justices Hammond, Brown, Lummus, Qua, Gray, Fosdick return to the Lobby escorted by a court officer, after the day's session was over. In that era in such company a Superior Court justice in his early thirties seemed a novel figure to a lawyer not many years his junior.
On an occasion like this, the long forgotten yesterdays emerge vividly from the mists of the past, and the young Mr. Justice Kirk, presiding over that jury trial over four decades ago, is still a clearly delineated character, a soldierly figure in his judicial robes, crisp, clear in utterance, decisive in his rulings, and with a gracious courtesy to counsel, jury, clerk and court officers. He was one of those rare men who, walking alone on a country lane, or mingling in the throng of a crowded street had a carriage, a grace of demeanor, a dignity of bearing, an inner composure that made one feel he had a basic courtesy and consideration for his fellow man and for the environment, human or natural, in which he found himself.
I move to another day which seems like yesterday, May 1, 1959. It was the day which commemorated the Centennial of the Superior Court. Mr. Justice Kirk, now a senior justice of that court, had been designated by Chief Justice Paul C. Reardon with the enthusiastic concurrence of his colleagues as the justice who was to organize and supervise an appropriate commemoration of the day. Precisely at the time appointed, the Justices of this court led by Chief Justice Wilkins, the Justices of the Superior Court led by Chief Justice Reardon and representatives of the entire judiciary and bar of the Commonwealth, attired in formal dress, marched in solemn procession from the old Court House to the Hall of Flags in the State House for a reception by the Governor of the Commonwealth. We who served as Marshals in this procession knew intimately the meticulous attention Mr. Justice Kirk gave to every detail of the ceremonial. When, despite a mild rain, this former Colonel in World War II issued to the Marshals a quiet direction to commence the march, the impressive judicial formation promptly moved forward. He then unobtrusively took his own place with his colleagues, and avoided any recognition of his own role in planning every detail of the event.
The following year Mr. Justice Kirk ascended the bench of the Supreme Judicial Court and ended his service as a trial judge on the Superior Court. I cite his attention to the Centennial observance of that court not solely as an illustration of his superb qualities in organization and administration, and his modest avoidance of the spotlight. It was a manifestation of a deeper quality - profound institutional loyalty. He revered the Superior Court as an institution. He viewed our judicial system, indeed our governmental structure, not as fluid, make-shift, pragmatic improvisations, but as durable time-tested institutions through which God did indeed "save the Commonwealth of Massachusetts". To him the Superior Court represented the distilled essence of the consecrated energies and talents of generations of its dedicated justices, its courtrooms filled with echoes of their jury charges and the voices of past eloquent advocates, a tribunal which constituted the tested crucible whence came the thousands of verdicts and judgments profoundly affecting the lives and property of the citizenry. As one called to the Superior Bench in his youth he repeatedly witnessed the death and retirement of his older colleagues who had warmly welcomes him when he joined the court. No one was more solicitous of a fellow judge when advancing years or failing health slowed that judge's step or sapped his strength. No one was more sedulous in quietly inspiring the appropriate remembrance of a departed colleague.
The qualities of character and temperament I have noted in his early judicial career ripened and matured with the years as he traveled the Circuit, sat in practically every county, and presided over the trial of complex and significant causes. Thus he came to know and to be revered by the bar of the Commonwealth. An appellate judge has his memory preserved in the official reports of his court. A trial judge's posthumous remembrance is preserved in the recollections of the lawyers who appeared before him, and the jurors and court personnel who were instructed or guided by him. Even if Justice Kirk had no written opinions in our books, his personality would be durably reflected in the tradition of the bar who cherish and pass down the memory of the great trial judge. In his relationship with the profession again that distinctive inner grace of his made him a welcome guest at functions of the organized bar, but around him there was always an intangible circle of personal dignity which no camaraderie would dare invade.
I have spoken of only one aspect of his judicial career from the viewpoint of the bar. For many years, I was also privileged to enjoy his personal friendship. Hence, I cannot fail to mention, as a friend, that special quality of his life as husband and father, which integrated and inspired his life as a man, soldier and jurist. Saint Thomas More, Lord Chancellor of England, a great judge whom Justice Kirk venerated, sent the manuscript of his famous work Utopia to a friend in Antwerp. He wrote in his accompanying letter:
"For while in pleading, in hearing, in deciding causes, or composing disputes as an arbitrator, in waiting on some men about business, and on others out of respect, the greatest part of the day is spent on other men's affairs, the remainder of it must be given to my family at home;... I must gossip with my wife and chat with my children, and find something to say to my servants; for all these things I reckon a part of my business, unless I were to become a stranger in my house. . . ."
Paul Grattan Kirk, like Thomas More, was never a stranger in his house. He knew it was in his home that sustaining love was found and fostered. He came from a family of fourteen children. His brothers and sisters were valiant. In his own home he gave the love of a devoted husband and father, and the reciprocal love of his cherished wife, his loyal sons and daughters and his grandchildren made all his professional attainments seem worthwhile.
Chief Justice Charles Evans Hughes once wrote:
"The most beautiful and rarest thing in the world is a complete human life, unmarred, unified by intelligent purpose and uninterrupted accomplishment, blessed by great talent employed in the worthiest activities, with a deserved fame never dimmed and always growing."
Paul Grattan Kirk -- Commissioner of Public Safety of the Commonwealth, youthful justice of the Superior Court, doffing his robes for the uniform and winning five battle stars in World War II, returning to the Superior Court for long years of service and then serving as a justice of the Supreme Judicial Court for an additional decade with a total of thirty-four years on the Massachusetts judiciary and thirty-seven years in the service of the Commonwealth, loving husband, beloved father, loval friend! -- Certainly, his was a life that qualifies under Chief Justice Hughes's definition of "The most beautiful and the rarest thing in the world". In the words of the ancient liturgy of the Church which he loved: "Vita mutatu, non tollitur". "His life is changed, not taken away."
Joseph F. Ryan, Esquire, addressed the court as follows:
May it please the Court: I had the singular honor to serve as Mr. Justice Kirk's law clerk during the 1966 to 1967 term of this court. On behalf of all those chosen to serve as law clerks to Mr. Justice Kirk, I respectfully add our collective motion that this memorial be spread upon the records of this court.
Most of us, as law clerks, first met Judge Kirk when he was at the pinnacle of his legal career, and we were barely at the starting line of our own. Our first view of the man who was to provide the cornerstone for our legal careers, and with whom we were to share too short a period in our lives, was of one stern in aspect, broad shouldered, and powerful in appearance. Even in his sixties, he appeared strapping and strong and ruggedly handsome.
Judge Kirk's physical appearance belied somewhat his other personal qualities. He was gentle and compassionate. He was warm and engaging. He was exceedingly patient and understanding. He was completely unpretentious: he was totally unoccupied with himself or with his office. He treated us as professional equals.
Judge Kirk's physical appearance also masked from our view the physical ailments that plagued him throughout his tenure with this court. Characteristically, he seldom spoke about them. However, beginning in his early years on the bench of this court, Judge Kirk's eyesight became impaired to a point where prudence dictated that he not drive to Boston. With a characteristic reluctance which was born of his concern that he was imposing upon us, he accepted dependence upon his law clerks to drive him to court when it was in session.
On other days, Judge Kirk did his work in the quiet of his third floor room at his home in Newton. On many of those days we law clerks would visit with him in late afternoons to exchange and to discuss our work and to receive our new "marching orders." His wastebasket was always full with his earlier efforts of the day, and with much of our own work. Characteristically, he often tediously rewrote his final draft of the day to make the job easier for his law clerk and for the typist. He had great respect for all of the court personnel, and we law clerks observed that they, in turn, had a deeply authentic respect for Judge Kirk.
Regardless of how little of our writing found its way into Judge Kirk's own draft, he always expressed appreciation for our efforts, and made us feel proud to be working with him. When some of our writing did find its way into the Judge's draft, it seldom remained unscathed, for Judge Kirk was a word craftsman, a philologist of the highest order. He was aware of the origin of words, and he was sensitive to the nuances of words. He would not knowingly permit a word to be used which might be misleading to the reader. His appetite for clarity was ravenous. He insisted upon the utmost accuracy in factual accounts as well as in legal analyses. He strove for short, clear, crisp sentences. He would repeatedly rewrite his drafts to this end.
Judge Kirk's opinions reflect his military background. They are all well ordered. They are analytical. They are straightforward, forthright and thorough. His opinions march with precision. With each passing year, a change in law clerks brought a corresponding change in the law clerk's writing style. But the reported decisions show that the cadence of Judge Kirk's opinions never changed step nor lost a beat.
In all his writing efforts Judge Kirk brought to bear the full extent of his talents, which were considerable. He had a keen intellect. He was a legal scholar. Without aid of index, he would select the correct volume of the Massachusetts Reports to locate a case in point. Most importantly, however, he was endowed with exceptional quantities of common sense and perception.
One independent testimonial to the quality of Judge Kirk's reasoning and writing skills appears in a comment on Judge Kirk's dissent in Commonwealth v. Doherty, 353 Mass. 197 (1967), where the author states, "The well reasoned and brilliant dissent in this case is required reading for every trial practitioner." 1
Because of the high standards he set for himself, for Judge Kirk writing opinions did not come easily. He labored over his opinions. He appeared driven to excellence by his life-long values of integrity, loyalty and commitment to duty. He took the time to reduce an acceptable long draft into a readable short opinion. It was not unusual for him to work late into the night and to produce a substantially revised draft the following morning, incorporating matters which he had discussed with us the previous evening. He worked weekends. Even his treasured walks were used as a time to sharpen his thinking about the opinion then being shaped. His only real rest came during the court's summer recesses.
Nor did we law clerks observe Judge Kirk experience any joy in assuming the added burden of authoring dissents. Rather, we perceived his dissents as representing yet another call to duty, which he would not shirk. His first aim in marshalling material was to undertake to persuade other members of the court to his own view. If he failed in that undertaking, it was generally only with respect to matters affecting his fundamental principles and values that he undertook to publish his dissenting position.
We law clerks were often a sounding board to Judge Kirk's own legal reasoning. If we did not respond as he expected, he would probe and test the bases for our conclusions. But on those rare occasions when we confronted him with sound precedent and reasoning which could not be squared with his own view of a case, he was open to change, even when it meant apprising the court that his opinion would now be different from the view that he had expressed when accepting the assignment. Yet, he was always protective of us. He shouldered all responsibility for all decisions.
We learned quickly that Judge Kirk's view about the role of judges in authoring opinions was very simple. As he saw it, the judge's function was to decide cases; no more, no less. While we law clerks changed, Judge Kirk's approach to writing opinions was immutable. Each of us, in turn, heard Judge Kirk patiently intone, "How did the case get here; what is the scope of review; what are the issues before us?" These are the questions that serve to define the dimensions of his undertaking and that serve as the roadmap to each of Judge Kirk's opinions.
Judge Kirk's openness during our talks at his home and elsewhere gave us an insight into his personal views which shaped his opinions. First and foremost, he had the highest respect for people of all economic classes. He both believed and practiced the proposition of equality of persons. Many of us law clerks were the beneficiaries of his intolerance for discrimination in that, despite his fierce loyalty to Harvard, he often chose his law clerks from other law schools simply out of his overriding sense of fairness.
His concern for people is clearly mirrored in all his opinions. And his opinions contain a remarkable balancing of the interests of the individual parties with the interests of society as a whole. In civil matters, he jealously guarded the individual's right both to freedom of person and to freedom to use and dispose of private property. At the same time, he routinely struck down all efforts to use the legal process to favor one individual at the expense of society. In criminal cases, although he spoke out strongly in favor of according due process to defendants, he was equally adamant that society had rights, and defendants were not entitled to undue process. In this regard, he cautioned us that in reviewing a Superior Court trial, we were not correcting a law school exam. Yet, in all cases, he reached the proper result without stretching the law. All his opinions are grounded in and supported by the common law. He emphasized stability.
Judge Kirk also held strong views on the Massachusetts Constitution. He was a sophisticated scholar of that document. He loved that living instrument, and would not tolerate others' tinkering with its provisions. On the doctrine of separation of powers, he steadfastly maintained that there was an opaque wall between this court and the Legislature that ought not be penetrated. He saw this court as an instrument of real power that should be exercised with painstaking discretion.
Our frequent visits to the Kirk household and our contact with members of the family, added a unique dimension to our service as law clerks. We were always greeted and made to feel welcome by all members of the family in ways that far transcended the bounds of mere courtesy. In Judge Kirk's view -- which we sensed all other family members shared -- we were full-fledged members of the family. Many of us shared food and drink with the Kirks; some of us shared lodging at their summer home. It is not possible to articulate the full sense of family we law clerks feel with the Kirks. But one poignant incident shows its depth. On one occasion, in the course of sharing some personal thoughts with one of us, Judge Kirk, addressing his law clerk, referred to Mrs. Kirk as "your mother."
It is something special to be a member of the Kirk family, because they are a very special family. Although one could not see, one could always sense, the love based upon deep mutual respect that all the family members shared, and which was extended to embrace each of us in our turn as law clerks.
Following our year of service with Judge Kirk, our relationship with the Kirk family continued. For many of us, Judge Kirk continued to serve as our Mentor. He always had time for us and for our problems. His advice was sometimes earthy, but it was always sound. He could take our most tragic of life's problems and put then into simple and unthreatening perspective. He reminded us to live life, both "to stop and smell the roses along the way" and "to step up to the plate every day."
Judge Kirk retired from this court when under no legal compulsion to leave. Characteristic of the man, his decision to leave was firmly cast years in advance, and was motivated by a sense of duty that he should leave before his physical ailments interfered with his ability to perform his job properly and fully. After his retirement, many of us continued to visit Judge Kirk at his home on Wequaquet Lake. On most days, Judge Kirk would hoist our Nation's flag on the tall flagpole he had installed on the lake side of his home. Judge Kirk understood the importance of visible patriotism and loyalty to institutions. To the close observer, the flag was visible from the main highway, miles away, and served both as a beacon to the Kirk household and a sign that all was well therein.
Judge Kirk was always exuberant to hear from us and to hear news about his other law clerks. Characteristic of the man, he was always sensitive about taking up our time. He loved to reminisce, but it was seldom about himself unless he was pressed to do so. We watched him grow old physically. In his last years his eyesight and his legs continued to fail him and to deprive him of two of his greatest pleasures in life, reading and walking. But he always retained his youthful spirit.
Judge Kirk was a man who knew the meaning of life. He knew who he was, and accepted himself. He knew who he was not, and was adjusted and content with that. Consonant with being the recipient of the St. Thomas More award, he was, indeed, an adamantine man for all seasons.
Judge Kirk has bequeathed to us, his law clerks, a standard of legal excellence by which to gauge our own work. More importantly, he has given us a standard of excellence by which to gauge our own lives. Judge Kirk shared himself freely with us. We acknowledge our inadequacy to articulate the full impact he continues to have on our lives. It must suffice, therefore, simply to say that we remain in his debt, and he remains in our hearts.
Justice Francis J. Quirico addressed the court as follows:
Mr. Attorney General, fellow Justices, and brethren of the bar of the Commonwealth of Massachusetts: I am pleased that the Supreme Judicial Court permits me to speak today in behalf of its present and retired members on the occasion of this tribute to our late colleague, the Honorable Paul Grattan Kirk. It is fitting that we lay aside our daily cares to take note of the substantial contributions of our now departed colleague in his lifetime of faithful service to the people of this Commonwealth. I shall concentrate on his last ten years of public service as a member of the Supreme Judicial Court.
Justice Justice Kirk was appointed to this court by Governor Foster Furcolo on November 30, 1960, to succeed Justice Edward A. Counihan who had retired on November 23, 1960. He thus joined the five other then members of the court: Chief Justice Raymond S. Wilkins, and Justices John V. Spalding, Harold P. Williams, Arthur E. Whittemore and R. Ammi Cutter. The seventh position on the court had been vacant since the death of Justice James J. Ronan on December 29, 1959, and it was not filled until the appointment of Justice Jacob J. Spiegel on January 4, 1961.
Thereafter several additional changes in the membership of the court occurred during the period of Justice Kirk's service. Justice Williams resigned on October 31, 1962, and Justice Paul C. Reardon was appointed to succeed him on December 6,1962. Justice Whittemore passed away on October 1, 1969, and Justice Francis J. Quirico was appointed to succeed him on November 25, 1969. Chief Justice Wilkins resigned on September 1, 1970, and Chief Justice G. Joseph Tauro was appointed to succeed him on October 8, 1970. The next change in the membership of the court came with the resignation of Justice Kirk on December 31, 1970, after having served on this court for a period of ten years and one month, with two Chief Justices and seven Associate Justices.
Justice Kirk first sat with the Full Bench of the Supreme Judicial Court at Boston on December 5, 1960. As already noted by previous speakers, he brought with him to that position a wealth of experience as a lawyer and in public service, including many years of service as a Justice of the Superior Court of this Commonwealth. During the period of his service on the Supreme Judicial Court, he often referred to his pleasant memories of the years when he was a member of the Superior Court and of his warm friendship with many of his colleagues with whom he served on that court. He often referred to the contrast between the somewhat cloistered atmosphere of the Supreme Judicial Court and that of the Superior Court where he had enjoyed the daily opportunity for direct participation in matters touching the lives of many persons who appeared before him as parties, counsel, witnesses or jurors in trials, or as court personnel or observers.
Justice Kirk wrote about 475 opinions in his capacity as a member of the Supreme Judicial Court. This number includes some rescript opinions which do not bear his name and some Opinions of the Justices which do not identify the author. It follows by reason of that volume of opinions that he wrote on almost every subject coming before the court. It has already been noted by the Attorney General that in addition to the cases in which Justice Kirk wrote the opinion for the court, he also wrote a number of separate opinions, twelve of which were dissenting opinions and seven of which were concurring opinions.
His first published opinion was in the case of DiRico v. Board of Appeals of Quincy, 341 Mass. 607 (1961), reversing the grant of a variance. Several of his opinions were issued on his last day as a Justice, on December 30, 1970. The last, in order of publication, was Imper Realty Co. v. Riss, 358 Mass. 529 (1970), involving a claim for a commission by a real estate broker.
The subject matters of the many opinions written by Justice Kirk are fairly representative of the variety of litigation which occupied the time of the trial and appellate courts of this Commonwealth in the years from 1960 to 1970. On the civil side of the law there were still many appeals raising procedural issues under the practice statutes which ultimately gave way to the Massachusetts Rules of Civil Procedure in 1974. Since this decade was before the advent of the "no fault" concept of compensation for injuries in many motor vehicle accidents, there were many appeals involving the application of the common law rules governing traditional tort actions. However, it was also a decade in which trial lawyers demonstrated unique and unlimited ingenuity and perfected skills in the handling of claims based on alleged violations of consumer rights, alleged violations of duties by manufacturers or producers of products, and alleged malpractice by medical practitioners, by lawyers, and by other professionals; and was also the decade which saw the recognition and development of the concept of class actions. Along with these developments there was an increase in the number of litigants who would not accept decisions of a trial court with any degree of finality in civil cases.
The decade of 1960 through 1970 also saw important and far reaching developments on the criminal side of the law, originating primarily with decisions of the United States Supreme Court, and contributing to the already heavy burden of the Supreme Judicial Court. The opinions written by Justice Kirk and other members of the court during that decade reflect the many Federal decisions which made most of the first ten amendments to the United States Constitution applicable to the several States.
While this is not an occasion on which to attempt an exhaustive review of Justice Kirk's contribution to the development of the law of this Commonwealth during the decade in which he served on the Supreme Judicial Court, it is appropriate to call attention to a few of his opinions on several subjects, first on the criminal side and then on the civil side of the law.
A few of the more important decisions by the United States Supreme Court on the criminal side of the law requiring action or reaction by the Supreme Judicial Court in the 1960-1970 decade were: Mapp v. Ohio, 367 U.S. 643 (1961), Escobedo v. Illinois, 378 U.S. 478 (1964), Miranda v. Arizona, 384 U.S. 436 (1966), and Bruton v. United States, 391 U.S. 123 (1968). These decisions not only required changes in the conduct of future trials, but also raised serious questions about the validity or constitutionality of many prior convictions. For examples of several opinions by Justice Kirk dealing with some of these problems, see Arsenault v. Commonwealth, 353 Mass. 575 (1968), Chin Kee v. Commonwealth, 354 Mass. 156 (1968) and Commonwealth v. Brown, 354 Mass. 337 (1968).
While some of Justice Kirk's early opinions in criminal cases may show signs that he acquiesced rather grudgingly to the new decisions of the United States Supreme Court, or that he was less than enthusiastic about them, it is obvious from the following language in his later opinion in Commonwealth v. McKenna, 355 Mass. 313 (1969), reversing the convictions of two defendants for the crimes of murder in the first degree, that he was reconciled to the obviously inevitable supremacy of the decisions of the United States Supreme Court. He said:
"We end this opinion with the observation that the speed and skill shown by the police in gathering evidence of a direct or circumstantial nature merit commendation. Where the evidence relied upon, however, consists of self-incriminating statements made by the accused while in custody under interrogation by the police, the procedures prescribed by the Miranda case must be observed in order that the statements be admissible. Those procedures have been developed, formulated, and promulgated by the Supreme Court of the United States, and have been given constitutional standing by that court. They are part of the law of the land and must be obeyed."
By virtue of Justice Kirk's opinion in Commonwealth v. Tracy, 349 Mass. 87 (1965), history may record that, absent an amendment to the Massachusetts Constitution, he was the author of probably the last opinion of the Supreme Judicial Court upholding the imposition of a death penalty for murder. In that opinion involving the killing of a police officer by a bank robber, Justice Kirk carefully summarized the evidence for review under G.L. c. 278, § 33E as then in effect, and then concluded: "Upon consideration of the whole case we are convinced that the verdict was just."
In an opinion by Justice Kirk, released on the last day of his service on the Supreme Judicial Court in the case of Commonwealth v. Bearse, 358 Mass. 481 (1970), he discussed the facts of the case in great detail, concluded that there was no reversible error, yet, because he was "struck with the enormity of the crime of which the defendant has been found guilty, the slaying of his youngest child with malice aforethought," and because of the family history and background, he could not fairly conclude that the defendant was guilty of murder in the second degree. He ordered that the verdict be set aside and that the case stand for trial on so much of the indictment as charged involuntary manslaughter.
One of the more important opinions written by Justice Kirk on the criminal side of the law was probably his strong dissent in the case of Commonwealth v. Doherty, 353 Mass. 197, 214 (1967), dealing with the subject of "John Doe" indictments. His views expressed in dissent ultimately prevailed and the previous practice of returning indictments charging persons described only as "John Doe," without any further information bv which the person intended to be charged could be identified, has been terminated. This was but one of many opinions in which Justice Kirk expressed his concern that a defendant in a criminal case receive fair treatment and a fair trial. However, he also spoke in his opinions of "the Commonwealth's right to a fair trial." See Commonwealth v. Roy, 349 Mass. 224, 227 (1965).
Justice Kirk also made a significant contribution to the law of criminal conspiracy by his opinions in a number of cases. These included his opinion in Commonwealth v. Kiernan, 348 Mass. 29 (1964), arising out of the construction of the Boston Common underground garage, and also his dissenting opinion in Commonwealth v. Stasiun, 349 Mass. 38, 55 (1965).
A considerable number of the civil cases reaching the Supreme Judicial Court between 1960 and 1970 involved decisions concerning the application of zoning statutes, ordinances and by-laws. The opinions of the court in a number of these cases were written by Justice Kirk. Many dealt with the granting of variances which were often reversed because of the failure to comply with the strict statutory limitations placed on the exercise of the power to depart from the legislative provisions.
Among the important opinions written by Justice Kirk was that of Fiduciary Trust Company, Trustee v. First National Bank of Colorado Springs, Colorado, 344 Mass. 1 (1962), dealing with the subject of powers of appointment and the exercise of such powers.
Perhaps one of the most important opinions written by Justice Kirk during his ten years on the Supreme Judicial Court was that of Cohen v. Attorney General, 357 Mass. 564 (1970), involving the question whether the initiative procedure contained in Article 48 of the Amendments to the Massachusetts Constitution could be used to bring about the passage of an act requiring the calling of a Constitutional Convention. That opinion reflects Justice Kirk's deep knowledge and concern with the history and background of the various provisions of the Massachusetts Constitution, and with the importance of preserving and assuring the continuance of the kind and quality of State government contemplated by that Constitution.
Justice Kirk's interest in the Supreme Judicial Court and its work did not end with his retirement from the court. For many years thereafter he received and read the advance sheets of the opinions released by the court, and he did so with a critical eye. It was not uncommon for a Justice of this court to receive a letter from Justice Kirk, in his own handwriting, expressing approval of an opinion, particularly an opinion which he thought "struck a strong blow for law and order," or which he thought upheld the basic constitutional concepts of the framework of the government of this Commonwealth. It should not be assumed, however, that his comments were limited to those opinions with which he agreed. They were not.
The record of Justice Kirk's contribution to the jurisprudence of this Commonwealth is fully documented by his many opinions which are to be found in volumes 341 through 358 of the Massachusetts Reports. The record of his relationship with colleagues on both the Superior Court and the Supreme Judicial Court is as firmly recorded in the cherished memories of all who served with him. We are pleased to spread these impressions and feelings about him on the records of this court.
The Chief Justice said:
Justice Quirico has responded eloquently for the court, but since I too can bear personal witness, may I add a brief postscript. I first knew of Paul Kirk in Italy in 1944. He was a general officer, and I filled a less distinguished -- one might say, almost invisible -- role. After the War, I was told by a few who knew him well that he could have been almost anything he wanted to be in public service. He chose to be a judge.
The proper administration of American justice is a fine art, and the lawyers, the clerks, and many others are its generators. But the efforts of all can reach no higher than the personality of the judge permits. Perfection, if the judge seeks it, requires unfailing courtesy, without sacrifice of firmness and decisiveness; evenhandedness, while retaining a jealous regard for the individuality of every person; restraint, eternal restraint, particularly as to both the quality and the quantity of speech. Above all, integrity in all its nuances.
Paul Kirk had it all. As a lawyer I appeared before him many times in the Superior Court, and later I argued before him as he sat on the Supreme Judicial Court. I tried my first jury case before him in Cambridge about thirty years ago. I recall that, after the trial, he told me, in his usual friendly fashion, that I should "keep the bow of the ship into the wind" which he translated to mean, "Don't turn your backside to the jury."
Paul Kirk certainly had a profound influence on the common law of Massachusetts and on thousands of litigants and lawyers who appeared before him. More important, I think, is our sure knowledge that he, by his example, had a part in the decisions which inspired some people of excellence and ideals to become judges. And they inspire others in their turn, to the next generation, and the next, and the next. If the search for perfect justice, by judges who seek perfection in themselves, is indispensable in our American community, what greater legacy can a man leave? The poet said it best:
"So when a great man dies, for years beyond our ken, "The light he leaves behind him directs the paths of men.
We allow the motion that the Memorial presented by the Attorney General be spread upon the records of this court. The court will now adjourn.
1 Rotenberg, Constitutional Rights v. John Doe, Boston Bar Journal, December 1967, p. 15.