Justice Rudolph Kass RemembrancePosted: November 3, 2021
Personal Reflections on the Life and Legacy of Justice Rudolph Kass
by Chief Justice Mark V. Green
Voice of the Judiciary
How can I attempt to capture the legacy of my good friend and former colleague, Justice Rudy Kass? It is a daunting assignment: to offer words on behalf of one of the most colorful and talented wordsmiths ever to serve on a Massachusetts appellate court. Rather than try to use my words to do him justice, I will, for the most, part allow his words to speak for themselves, with a couple of personal memories added for good measure.
I first met Rudy Kass, and Helen, in the fall of 1997, as we took our seats in a shuttle bus from the airport in Great Falls, Montana to the hotel where our little group would stay before launching a canoe trip down the upper Missouri River, retracing a portion of the Lewis and Clark journey described in Steven Ambrose’s Undaunted Courage. It was one in a series of back country excursions organized by Superior Court Judge Paul Chernoff and, just four months into my time as a trial judge in the Massachusetts Land Court, I was most fortunate to be included among four other veteran Superior Court judges, and Rudy. I was as nervous as a teenager at a high school dance, which is the only explanation I can offer for my ill-advised choice to initiate small talk by praising an opinion by Supreme Judicial Court Justice Charles Fried in the case of Goulding v. Cook. I did not know that Rudy had authored the Appeals Court opinion in the same case, and that Justice Fried’s soaring rhetoric reversed the conclusion Rudy and the Appeals Court had expressed. It is a testament to Rudy’s good nature and graciousness that, despite that awkward beginning, he took me under his wing and mentored me throughout my judicial career, and became a beloved friend.
My experience with Rudy was built principally around our work as judges. We bonded over a shared love of what we both called “dirt law.” Real estate is always about location, and each location has its own story. With his background as a newsman, Rudy was particularly expert at seeing and telling those stories in ways that spoke to lawyers and lay readers alike, breaking down subtle and complex legal concepts into terms that anyone could understand. But he also invariably added a level of color often absent from appellate caselaw. I have my own list of favorites among his opinions, but there are many other contenders.
In Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984) for example, he explained the concept of ouster – the doctrine by which one fractional owner of property may extinguish the interest of another – by telling the story from an unusual perspective, opening the opinion with the following unforgettable line: “Sebastian, the tobacco chewing sheep, would have been disconcerted by this appeal.” He went on to explain how Sebastian symbolized the open and obvious – and longstanding – occupation the Allen family had made of the farm they claimed now to own, free of any fractional interest held by the distant heirs of a former cotenant.
In the field of real estate law in particular, Rudy was legendary. On the sometimes murky question of when parties became bound during their progression from an offer to purchase to full agreement, Rudy offered a simple and pragmatic, but also evocative, framework for the preliminary stages of negotiation in Goren v. Royal Investments, 25 Mass. App. Ct. 137 (1987): “There is commercial utility” he observed, “in allowing persons to hug before they marry.”
On a question of interpretation of a noncompetition covenant in a lease, in Kobayashi v. Orion Ventures, 42 Mass. App. Ct. 492 (1997), he discussed the essential nature of a delicatessen, including a footnote recounting the classic comment by the proprietor of the Carnegie Deli in New York following a robbery: “Idiots! They took the money and left the pastrami!” By the way, should you be tempted to follow this lead to read the full opinion, I also commend to you footnote 9, which illustrates the circular logic of an argument by reference to Gilbert and Sullivan.
Rudy’s style was such that his hand was obvious even in a brief rescript opinion, issued without authoring attribution. When I opened the daily advance sheets on the morning of April of 2000 and saw the opening line of Commonwealth v. Buzzell, 49 Mass. App. Ct. 902 (2000), I knew immediately who had written it. The case involved a challenge to the sufficiency of the evidence supporting conviction under a statute requiring removal of dogs whose barking caused a nuisance. The defendant argued that there was no proof that the dogs who provoked the complaint were the same as those who remained on his property on the date he was arrested for failing to remove them. Rudy’s opinion opens as follows. “Sometimes a dog’s bark can be as bad as its bite.” Continuing, he explains that “The answer to the defendant’s ‘at least one identical dog’ argument is that [the statute] recognizes the fungibility of barking dogs. The mischief to be corrected is excessive barking and whether the source of the barking on the premises is Fang or Fido is not of the essence.” Rudy was surely one of the most visible members of the Appeals Court in its history, and remains one of those most often cited.
Rudy also was notable for his continuing engagement in the wider community. While the Code of Judicial Conduct does not prohibit judges from engaging in their communities, the limitations often cumulatively, over time, induce many long-serving judges to follow the path of least resistance and withdraw, at least somewhat. But not Rudy – he remained active in more social clubs than I knew to exist, and contributed generously on a wide variety of charitable boards. His visibility in our wider community was not merely a product of the prominence of his judicial writings.
As I came to know Rudy, I also came to know Helen. Theirs was an inspiring and continuing romance. It was evident in even the most casual observation of the two of them together – and they were almost always together – how intertwined they were. They demonstrated a comfortable and gentle intimacy, based on mutual respect, that was a model of what a marriage can be.
When I think of the attributes that most describe Rudy, three come to mind: optimism, curiosity, and adventurousness. Combined, the three capture his openness to new ideas, to new ways of doing things, and to new friends. He is an iconic figure in the Massachusetts judiciary, but his legacy extends beyond his work to the personal connection he made with so many. As a giant in the judiciary, and as a friend, he is greatly missed.
The Honorable Mark V. Green was appointed Chief Justice of the Appeals Court by Governor Charles D. Baker on December 6, 2017, having served on the Court as an Associate Justice since his appointment by Governor Jane M. Swift on November 1, 2001. He holds a Bachelor of Arts degree in philosophy from Cornell University, with distinction in all subjects, and is a 1982 cum laude graduate of Harvard Law School. He is a former member of the Board of Editors of the Boston Bar Journal.
Appreciation of Associate Justice Kass
by Paul G. Rozelle
When I walked into Justice Kass’s chambers, I saw a manual typewriter evidencing recent use; a prominently displayed x-ray of something broken (the result, I would later learn, of a grand [mis]adventure); and a trim man perched behind a desk adorned with papers bearing hand-edits, several well-used books, and a Leica camera. Justice Kass’s rolled-up shirt sleeves revealed muscular forearms. This guy looks fifty, tops, I thought, yet he was due to retire the year I hoped to clerk for him. Justice Kass believed bouts of intellectual exercise should be punctuated by regular physical activity.
My interview was a grand tour through the law, history, Gilbert and Sullivan, and, of course, travel, sailing, cycling, hiking, and skiing. The conversational whirlwind that marked our initial meeting would be reprised throughout the year. Discussion about an opinion-in-progress would frequently turn to other, diverse subjects about which Justice Kass held deep knowledge and a desire to learn more.
A hand-written note greeted the first day of my clerkship, resting atop several recently published opinions from justices whose craft Justice Kass commended to my study. He had annotated one from then-Associate Justice Margaret Marshall, “This is what an opinion should look like.” That writing well requires reading good writing would be regularly reinforced by referrals not only to exceptional judicial opinions, but to articles from Harper’s, The Atlantic, and The New Yorker.
Opinions are the stock-in-trade of appellate decision-making. Clerking for Justice Kass was not just a tutorial in how to produce engaging writing, but in how judges decide cases. Persuasive advocacy is foremost an exercise in storytelling and Justice Kass’s opinions — ingots borne of the crucible of zealous advocacy — were famously works of memorable prose. While Justice Kass imparted several maxims of good writing (opinions must not start with The or This and, to this day, I avoid clearly and obviously), good writing broadly meant painting a vivid picture for the reader. The key to the right decision, he counseled, was fully understanding and communicating the facts.
Justice Kass’s remarkable writing was founded on sound judgment and that, I learned, came not just from command of the record and an inquisitive mind, but, most critically, from empathy, compassion, and respect for those before the court. On one occasion I was tasked with retrieving a bank surveillance videotape from the trial court record. To arrive at a good decision — meaning, not merely correct, but just — about whether the trial judge erred in admitting lay opinion testimony that the defendant was the person depicted in the video, Justice Kass wanted to see the video himself. Justice and fairness sometimes requires getting and watching a videotape the parties omitted from the appellate record. Another case involved a confession of error by the Commonwealth. That should be the end of it, I naively thought, oblivious to my forthcoming assignment to research whether an appellate court must accept a confession of error. See Commonwealth v. Montalvo, 50 Mass. App. Ct. 85, 87 (2000) (“The Commonwealth’s confession of error has heft, but does not relieve us of our duty to determine independently whether an error was, in fact, committed.”).
Most remarkable, especially to a freshly minted law school graduate, was that Justice Kass earnestly wanted to know what I thought. He treated everyone as an equal and was a keen listener. “I already know what I think,” he told me early on, “I want to know what you think.”
Justice Kass sincerely meant this. In a case where the panel was undecided on the result, Justice Kass, as the senior member, assigned it to himself. “You write it one way, I’ll write it the other,” he playfully instructed me, mollifying my mild terror. Soon after submitting my effort, I received a copy of the memo he had written, sharing not only his draft, but mine, too, with the panel. My “opinion” garnered no votes, but it merited a lunch invitation from Justice Benjamin Kaplan, who was then serving on the Appeals Court as a recall justice. That his clerk’s (wrong, but intriguing) approach earned his own teacher and mentor’s approval made Justice Kass beam.
As winter arrived, I was summoned to his chambers. “I hear you like to ski,” Justice Kass began, “and so we shall have to find a time.” He looked up from his calendar, “But it will have to be on a weekday.” Justice Kass paused before adding, “Skiing on the weekend is uncivilized.” A few weeks later, I found myself skiing several inches of undisturbed Tuesday-morning powder as Justice Kass schussed down the slope, yodeling. Yes, yodeling.
Indeed, the most enduring lesson Justice Kass imparted was to have fun and stay grounded and focused, not just in one’s writing, but, more importantly, in life. Inspired by his family, and most especially by his wife, Helen — who provided an extra measure of mentoring, support, and grace to his clerks’ lives — Justice Kass did just that. Dayenu (it would have been enough), but Justice Kass also gave us a canine worth fighting over, Commonwealth v. Eaton, 11 Mass. App. Ct. 732 (1981), a nicotine-addled ovine, Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984), and a heightened acuity for processed bovine, Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492 (1997). Rudy, we miss your wit, charm, grace, and yes, even your yodeling.
Paul G. Rozelle is the Managing Senior Counsel for the Pinellas County, Florida Sheriff’s Office. He clerked for Associate Justice Rudolph Kass during the 1999-2000 term.