16 Mass. App. Ct. 1111

Memorial

A special sitting of the Appeals Court was held at Boston on June 15, 1983, at which a Memorial to the late Justice Reuben Goodman was presented.

Present: Chief Justice Hale, and Justices Armstrong, Brown, Greaney, Perretta, Dreben, Kass, Smith, and Warner.

The Chief Justice said:

Good morning. Our warmest regards to Mrs. Goodman and to the many friends of the Goodmans, some of whom have come great distances to be with us this morning. The court recognizes the Attorney General.

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 Reuben Goodman, an original member of the Appeals Court of the Commonwealth.

Justice Goodman was born July 14, 1913 in Brockton, the son of Russian immigrants. Both his parents worked in Brockton shoe factories; their primary goal, education for their son.

Yiddish was Reuben Goodman's first language. He did not learn English until the age of four or five. Yet, not only did he learn English, he mastered it. And, as we who read and rely on his many opinions know, he excelled at the written and spoken word. Indeed, the hallmark of Reuben Goodman's career was his devotion to freedom of speech. During the Depression, Reuben Goodman was graduated from Brockton High School. He entered Harvard College in 1931, and was graduated cum laude in 1935. He was graduated from Harvard Law School in 1938 and that same year was admitted to the Massachusetts bar.

He married Helen B. Greenberg on January 30, 1944. Their home was at 31 Katherine Road in Watertown.

In the late 30's and the early 40's, Reuben Goodman pursued a career in private and public service that led him to the work for which he is renowned . . . the Massachusetts Defenders Committee, the Civil Liberties Union of Massachusetts . . . and finally, the judiciary.

In all these positions, from the Civil Liberties Union to the judiciary, Reuben Goodman expressed his faith in the individual -- he helped the little person -- people who would not have had access to our system of Justice but for his efforts on their behalf, As a vital part of our judicial system, Reuben Goodman courageously stood for the rights of the common man. Whether he was defending people accused of crime, or deciding the fate of litigants who came before him, Justice Reuben Goodman listened to all voices -- great and small -- and made his decisions based on fairness. As Justice Greaney of this court said of Justice Goodman the day after he died:

   "Judge Goodman believed that the rule of law is a rule of fairness and for him the dispositive question in each case was always -- Is what we are doing just? He refused to analyze cases in terms of empty formalisms, choosing instead to hold steadfastly to the principle that if it is really unjust or wrong it should not be the law."

This sense of what it meant to judge was, after all, just a continuation of the ideals he pursued so vigorously in his earlier career.

In this regard, we must note that Reuben Goodman gave freely of himself to his community. He served as a board member of the Urban League of Boston, as a member of the executive committee of the Civil Liberties Union and as a member of the governing council of the American Jewish Congress.

In addition, he served as a member of the Advisory Committee on Civil Rights and Civil Liberties of two Massachusetts Attorneys General -- Richardson and Quinn.

His professional life included various legal responsibilities with the United States government. He also served as defense counsel in many celebrated trials that took him from Boston to Washington to the Orient.

From 1943 to 1946 he was Chief Counsel for the Office of Price Administration where he acted as legal advisor in the Food Division on matters connected with price control of fish, fats, and oil.

Justice Goodman served in 1946 with the Department of Justice in Seoul, Korea, as an advisor to the Korean Ministry of Justice in reorganizing the administrative branch of the South Korean interim government.

From 1947 to 1950 he was in Tokyo with the Allied government forces to help reestablish a civilian government and set up a new constitution. He was cited for this work by the Japanese government in a letter of commendation that noted, "Your invaluable contribution to the stablization of the Japanese economy is deeply appreciated and shall long be remembered."

He was defense counsel in the widely publicized Grown Kosher Market case when the store was accused of violating the "blue laws" by doing business on Sunday. He was also a member of Governor Volpe's commission to revise the Sunday blue laws.

He was defense counsel with Attorney Paul T. Smith in the celebrated Brink's trial that stemmed from the January, 1950, robbery in which more than a million dollars was taken from the Brink's North End counting room.

For many years he served as general counsel for the Massachusetts Civil Liberties Union and successfully defended the books, "Fanny Hill" and "Tropic of Cancer" against obscenity charges. In recognition of his service in behalf of civil liberties, Justice Goodman was honored in May, 1967, with the Abraham T. Alper Memorial Award which noted that "his relentless opposition to censorship has made more secure the defenses of intellectual liberty."

From 1966 until his judicial appointment, he was chief appellate counsel for the Massachusetts Defenders Committee, representing criminal defendants who could not afford a lawyer. During his tenure, the committee handled 112 cases. He argued and wrote briefs for 51 of them.

Governor Francis Sargent appointed Reuben Goodman one of the six original Associate Justices of the Appeals Court in 1972. Reuben Goodman served as a distinguished and articulate judge of his fellow men and women. His opinions, as his beloved law clerks will tell you, have one constant: concern for ultimate fairness. As Justice Raya S. Dreben said of Reuben Goodman:

   "Judge Goodman refused to be diverted by technical arguments, no matter how powerful, no matter by whom said, and steadfastly held to the principle if it is really unjust or wrong it is not the law."

And unfairness was not tolerated by Justice Goodman. In Carter v. Empire Mutual Insurance Company, 6 Mass. App. Ct. 114 (1978), we hear Justice Goodman defend the individual in the face of an onslaught of bureaucratic excuses for why an unfair result should be upheld. None of that for Justice Goodman, And, in Commonwealth v. Ennis, 1 Mass. App. Ct. 499 (1973), we hear Justice Goodman say that it is not fair for the court to refuse to reveal to the defendant the identity of the only witness to the defendant's alleged crime. And as his hero Franklin Delano Roosevelt said:

   "We all know that books burn -- yet we have the greater knowledge that books cannot be killed by fire. People die, but books never die. No man and no force can abolish memory."

And today, we remember Reuben Goodman through our recollection of his sterling career and our reading of the many opinions he authored for this court. In those opinions, our collective memory of Reuben Goodman will never die.

Often we are judged by how others see us, our accomplishments, contributions, achievements. How did Justice Goodman rank in these categories by those who knew him and were associated with him? Let me relate their sentiments in their own words.

From a Boston attorney, Frank Kozol: "I knew his great ability, which he proved by his superb service on the Appeals Court. His opinions were magnificent for their cogency and scholarship and his unfailing grace and kindness."

From a young judge, John C. Cratsley: "Justice Goodman was one of my constant sources of information and inspiration. His advice was accurate and useful. I am certain he did this for numerous others. He served both the law and its people so very well. I am proud that he was one of my teachers."

A former law clerk, Richard Goldfarb: "He showed me that a person can be a good lawyer or judge and do good, without compromising either principle. And this extended to personal relationships. No law clerk ever had a better time with his judge than I with him."

A former law associate, Shirley Bayle: "Reuben's wit, wisdom and courage will survive all of us in the collected opinions of Reuben Goodman. He will be the inspiration of future generations of lawyers as he was to me."

And there are so many more . . . the Civil Liberties Union considered him "one of the giants in the history of the organization, the conscience of the board."

There are references to his intelligence, loyalty, dignity and command of the English language. Father Robert Drinan wrote to Justice Goodman, I am the beneficiary of your wisdom and insight and for this I am abidingly grateful."

As the Attorney General of this Commonwealth and one who knew Justice Goodman, I would like to add, We are all "abidingly grateful" that he touched so many of our lives in such an important way.

A life has lasting meaning not because of personal success but rather because of the enduring monuments left behind.

The great athletes of Sparta are long forgotten. And yet thousands daily travel to view the masterpieces of Michelangelo and of Leonardo da Vinci and read the works of Plato. The monuments of Justice Reuben Goodman arg the impact he has had upon his community and his legal opinions. These are enduring monuments.

I respectfully request and move that this memorial be embodied in the records of this court.

Raymond H. Young, Esquire, addressed the court as follows:

May it please the court: I propose to address some personal aspects of Justice Goodman's life.

Justice Goodman's love of books and literature began with Jack London's tales of adventure and the wild, read at an early age in Yiddish. Those stories and the Thornton Burgess stories, he remembered for the rest of his life. His favorites in later life were the abolitionists, for their literary style, and, more important, for the force and Justice of their beliefs. He collected political handbills for over twenty years, and his collection will in the future be a major scholarly resource for those seeking to understand the events of our times.

His wartime government responsibility in price administration (fish, fats and oils) was exciting and satisfying for him and gave him an abiding belief in the constructive accomplishments possible through government service. After the war, in 1946, Roger Baldwin of the American Civil Liberties Union went on an official fact finding mission to Korea. He was well advised, by someone in a position to know, that after the official handouts, the person to check with there for real information was Reuben Goodman. Reuben was then military government advisor to the Korean Ministry of Justice and the Korean interim government. Roger Baldwin did call on Reuben, his report was helped materially, and a life long friendship was established. But Korea was a frustrating experience. Reuben found it impossible to convince the head of the Korean police that it was not necessary to have a policeman stationed to watch every performance, at every theater, or that the police should not have veto power over the acts of the civilian administrators. Ironically, it was that very police chief who later became the leader of the "liberal" opposition. That may indicate a sorry state of political democracy, or perhaps it shows that, as usual, Reuben's persuasions had some effect.

After Korea, the establishment of the civilian government in Japan was a pleasant contrast. Somewhat to Reuben's surprise, he came away with a great respect for General MacArthur. Reuben regarded General MacArthur as responsible for the land reform program in Japan, for the establishment of a strong and flourishing labor movement, and for constitutional safeguards. So Korea was close to all bad, and Japan close to all good. But Reuben reflected later that perhaps the difference was that his wife was able to join him in Japan, and that made a difference. Reuben and Helen retained for over 30 years close friendships with Japanese families met at that time.

Crime touched the life of the future Justice Goodman on at least two occasions, but without turning him into a reactionary. Reuben's first involvement with the Sacco-Vanzetti case was as a victim of the underlying robbery. The shoe factory Reuben's father worked at when Reuben was seven was Slater & Morrell, and Reuben's father came home that day without his week's pay.

Again, when Reuben and Helen lived on Broadway in Cambridge, one evening a robber entered their apartment while they were asleep. They were awakened at 2 A.M. and threatened with death with their own kitchen knife. At one point the robber asked what Reuben did and when told he was a lawyer, said, "Well I need some legal advice, I'd like to talk to you about some problems I have." This may have been the only time Reuben turned down a request for legal assistance from a person in trouble. But he said, rightly enough, that he thought there would be some better time and place for such a discussion.

Reuben gave much to his profession through bar association activities, including what we can now say showed a great deal of foresight, a subcommittee on the establishment of a Massachusetts court of appeals, and, again with the same foresight, the committee on the Massachusetts Rules of Appellate Procedure.

His practice was wide ranging. It included labor union representation, notably the Atlantic Fishermen's Union in the early 1940's. People he worked with then stayed his friends for life and remained his clients until he went on this bench. He also retained a great fund of labor songs which, given some encouragement, he continued to sing word for word and with much feeling up to his last years.

As other speakers have told you and will tell you, he was one of the finest appellate advocates in Massachusetts. Yet he also had the specialty of estate planning throughout the 1960's. He never had any illusion that there was much if any social utility to the transmission of wealth down the generations. But the task appealed to him as an intellectual challenge, to fit the complex rules together to obtain the result wished by the client.

For more robust matters sustaining the juices of life, Reuben Goodman depended upon his work in the fields of civil liberties and civil rights. While counsel for the Civil Liberties Union of Massachusetts, at that time an unpaid volunteer position, he organized younger lawyers interested in civil liberties and civil rights for weekly discussion of the then current issues, and for acceptance on a pro bono basis of the important civil liberties cases. And he did the same thing as co-chairman of the Committee on Law and Social Action of the American Jewish Congress.

When Governor Francis Sargent held a press conference to announce the appointment of the six initial Justices of this court, he mentioned, as the television cameras were turning, Reuben's civil rights and civil liberties background. After the cameras stopped, the Governor turned to Reuben and said, "I hope this doesn't spoil your reputation." Shortly thereafter on the subway Reuben met a radical leader who said to him that she would still respect him, even though he had become a judge.

Reuben Goodman loved the work of this court and the Justices who shared the court's labors with him. He cherished the statutory construction role of listening to the tune and not just the words. His opinions reflect that. But I think it fair to say that he looked forward to reaching statutory retirement age, and at that time not considering recall status, but rather going back to pro bono civil liberties and civil rights work, with the Civil Liberties Union or otherwise. Fate prevented Reuben from carrying out that ambition. But I am pleased to say that that work will be carried on in the future by all those younger lawyers whom he has inspired, including those who follow me in addressing the court today. In that respect Rebuen defied even Shakespeare, for the good he did will not lie interred with his bones.

I respectfully urge the allowance of the Attorney General's motion.

Alexander Whiteside, Esquire, addressed the court as follows:

I am deeply appreciative of the privilege of addressing this Honorable Court and the friends and family of Justice Reuben Goodman in tribute of that remarkable man and distinguished jurist. In 1966, Justice Goodman became attorney in charge of appeals at the Massachusetts Defenders Committee. His goal was to provide the best possible appellate representation to the indigent persons whose cases were handled. Achievement of this goal was not made easy by the fact that his help all began fresh from law school without experience, although I believe that the work with young lawyers and law students was a part of the challenge which prompted him to take the job.

Reuben Goodman's teaching technique for the lawyers under his charge (of whom I was one) involved intensive discussion, In order to insure proper presentation of the cases in which he did not write the brief, Reuben Goodman began by initially reviewing a case with the lawyer who was going to do so. He pointed out what was involved and made suggestions about possible avenues of legal research.

Reuben Goodman had an unerring ability to know whether issues had been adequately researched and had little tolerance when they were not. The lawyers who worked for him soon knew neither to try to take short cuts in research nor to fail to ask at an early stage if there were something they did not understand. However, given understanding of the law and grasp of the facts, the young lawyer was treated as an equal by Reuben Goodman, who, if he differed in his perception about how an issue should be best presented, would seek to convince the writer to alter his or her approach. Although Reuben Goodman's powers of persuasion backed by mastery of law usually prevailed, he kept an open mind and might revise or refine his own views as a result of these discussions.

Not only did Reuben Goodman listen to and consider our opinions in the course of business but also he exchanged views and perceptions on a wide range of legal, social and political topics. These were lively and stimulating exchanges which often lasted far into the evening. A feeling of closeness and good will developed between Reuben and those with whom he worked (whether lawyers, students or secretaries). This mutual affection carried beyond the workplace into our private lives. I well remember the wedding and reception Helen and Reuben held for one of us at their home; this occasion was indicative of the strength of the feeling, a sense of family.

During the time I worked for Justice Goodman, I came to know a scholar of law with high ideals and uncompromising integrity and a person of warmth and concern for others. I greatly admired him, and I gave my best to the work for him as a result of a conviction that he would be personally disappointed in me if he received any less. For all these qualities, he was a natural to be a judge.

John W. Marshall, Esquire, addressed the court as follows:

Mr. Chief Justice and Associate Justices of the Appeals Court, may it please the Court:

I am honored with the opportunity to speak here this morning in support of the Attorney General's motion. I appear before you on behalf of the young men and women who enjoyed the opportunity of beginning the practice of law as law clerks to Mr. Justice Reuben Goodman.

The humanism which Judge Goodman brought to his work has been mentioned frequently today, but at the risk of repetition I would like to commemorate the unique importance of that humanism to his law clerks. One must remember that as law clerks we joined the Appeals Court staff fresh from law school, and, in most cases, the bar exam. In both contexts, law can easily be misperceived as a dry, academic exercise involving primarily one's memory and sense of logic, in which judges and the litigants themselves are merely secondary to the role played by "the law."

Judge Goodman's humanism confronted and destroyed those classic law school myths. On one level, he strove to establish a personal relationship with his clerks, wanting to be known, in his words, "as a person, not merely a judge." In his eyes, judicial office did not in any way place him above anyone else. He also took great pleasure in seeing his clerks do well, both personally and professionally. I will never forget the day when Judge Goodman asked me what my post-clerkship plans were. When I told him I had none, he sat down with me in his office and literally pored over each page in his lawyer's directory to give me names of lawyers whom I should contact.

On another level, Judge Goodman taught us that the litigants involved in the cases before the Court were the most important people in the judicial process. This dominant concern for human rights, which was a cornerstone of his career as a lawyer, also dominated his approach to the cases before him. His primary concern was the impact his decisions would have on the people involved in a case. Because of this concern, he absolutely required his clerks to be completely familiar with the facts of a case before researching and analyzing the law. Needless to say, for those of us now in practice that was an invaluable lesson.

Our passage from law school to the practice of law was made complete by Judge Goodman's passion for judicial precedent. He was fond of saying that "statements and memoranda that are unsupported by cases are just so much gossip," and that "unshepardized cases are flotsam and jetsam." Judge Goodman firmly believed that if a particular result in a case was fair, then it was the law, and if it was the law, then it was supported by precedent. Stubborn though his persistence may have seemed at times, he was usually right.

Judge Goodman's felt need to thoroughly analyze the facts and the law of each case before him at times placed a large backlog of cases on his shoulders. He wrote of this problem in 1980: "I'm still trying to answer Micah's question ('and what doth the Lord require of thee?') with 'to do justly and to love mercy' and to get the cases out fast." Judge Goodman was one of the hardest workers I have ever seen, and he refused to sacrifice intellectual honesty and clarity of expression for a quick opinion. He taught his clerks that, whatever else may be designed to promote efficiency in court, hard work is always required to do justice.

For the law clerks of Judge Goodman, memory dwells on the sense of humanity, the wisdom and the kindness which he gave and which continue to shape our professional and personal lives. He served as a bridge between the academic and the human side of law, and in that respect he was the best teacher I have ever had. We want to give Judge Goodman our thanks and our profound admiration by supporting the Attorney General's motion.

Justice Brown, speaking for the court at the request of Chief Justice Hale, responded as follows:

Chief Justice, members of the court:

I am privileged, as well as genuinely moved, by this high honor of being asked by you and the other Justices to speak for the court -- the court which Judge Goodman loved -- at this special session in his memory. To me, he was more than a helpful and trusted colleague, he was my friend -- a warm, caring friend.

Reuben Goodman was a scholar, a teacher, an able practitioner and a concerned jurist, but, more important, to him and to me, he was a humanist. People, all people mattered a great deal to him. He constantly preached against those evil "isms" which threatened to destroy our country and the world. Liberty, Justice and freedom were words to many, but to Judge Goodman, they were the essence of civilized life.

He made no excuses for his support of powerless and economically disadvantaged persons. A quick perusal of the names of parties in a few typical opinions exemplify this concern: Bertha Carter -- a wronged consumer; Orville Fortune -- a wronged employee; Frank Korbut -- a wronged teacher.

When he was called to the bench, he was fascinated by how six individuals of different backgrounds and experience interacted. He remarked in 1975 that "the main cohesive factor is intellectual integrity, as each of us in his own way tries to separate his prejudices from his principles." He strongly believed that for the entire judicial process to have any validity the difference between principle and prejudice must not be merely semantic.

For the day to day work of the court he laid down a few operating maxims:

On listening to each other -- "If two people tell you you're drunk it's time to lie down";

On style -- "Style is non-negotiable";

On judicial demeanor -- "Credibility is directly proportional to solemnity."

His colleagues on the court were his friends, and he cherished their frienship. He strove -- and succeeded -- in keeping differences of opinion confined to the conference room. He sought consensus, but in those rare cases when consensus could not be achieved, he would dissent. Like his majority opinions, his dissents were always thoroughly researched and meticulously crafted. Once, he even found himself in the awkward position of having to dissent from part of his own opinion; unable to persuade another judge to draft the majority opinion in Commonwealth v. Swenor, 3 Mass. App. Ct. 65 (1975), he dutifully reported the opinion of his five colleagues, and then added an addendum setting forth his own contrary views.

As a new judge, I sought out his decisions. I called them "Goodman Gold" because I knew if I was able to find a case of his even close to the point, I would discover more about the question than I knew, and on occasion, more than I needed to know. He constantly sought to reach deeper and more subtle levels of analysis. He dug and he dug -- and then he dug some more -- until he reached what he regarded as the "real" problem in the case. See, for example, Dynamics Research Corporation v. Analytic Sciences Corporation, 9 Mass. App. Ct. 254 (1980), his exhaustive trade secrets case. But even as he strove for the highest quality in his decisions, his wisdom and insight were never more manifest than when he was called upon to comment on the opinions of his colleagues on the court. His running commentaries on the work product of his colleagues did not abate even during a long and debilitating illness.

He had the ability to indicate on a draft opinion -- a draft on which the author may have put forth what he thought was his "maximum effort" -- that there may be a serious problem or an unintended implication lurking in the draft as written. These courteous but succinct comments were his euphemistic ways of letting the author know that he thought an injustice was about to be done. For me, as an author who was occasionally on the receiving end of such comments, these moments combined delight with pain: personal pain because I had overlooked something that to him was obvious, and professional delight because my draft opinion would now be strengthened and improved.

As the Attorney General has noted, he refused to be diverted by technical arguments, regardless of how well they were presented or by whom they were made. He refused to elevate form over substance. What mattered most to him was the rightness of the result, and the result had to make sense. He often remarked that "if it doesn't make sense, it can't be the law."

Like all appellate judges, he was concerned about growing caseloads. But he was more concerned about the integrity of the bench. In 1978 he wrote, "We can't let the volume [of cases] intimidate us into transforming courts into bureaucracies." He wished there were more time for reflection, but he realized that time was scarce. He was delighted to see the appointment of four additional judges -- men and women -- in 1978. The diversity of the appointments pleased him much more than the number. He knew, and he was right -- now, our court would be more representative of society.

Judge Goodman suffered with cancer for two years. He did not complain and did not surrender to his disease, although he had no illusions about its gravity. Toward the end we saw his body erode. His intellectual vigor never did. Nor did his cheerfulness ever wane. He furnished an unforgettable example of the triumph of the human spirit.

We do not gather here today to mourn Judge Goodman. We are here to celebrate and thank him for his contribution to the law, this court and humankind. We extol and memorialize, today, a man who was totally committed to the majesty of human rights.

Those of use who knew him loved him. We can all be comforted at this time by the knowledge that he takes his rightful place with the great judges of our Commonwealth. But I think Reuben would perhaps be more pleased to be mentioned in the company of Horace Mann, Charles Sumner and Wendell Phillips -- individuals who, like him, exhibited courage, moral outrage and a sense of justice and fairness, not often seen in their, or our, time.

His most frequent homily was that "judges do have choices." For this, we will forever be indebted. Reuben Goodman was truly the conscience of our court, and I hope he will always remain so.

Chief Justice Hale, with sincerity and passion I recommend that the Attorney General's motion be allowed.

The Chief Justice said:

We allow the motion that the memorial be spread upon the records of this court.

We thank you all for coming. There will be a reception in the Appeals Court Library.