Judge Allan van Gestel dismisses the buzz that is making its away around Boston's legal community that he is stepping down from the state's business court that he shaped so effectively over the last seven years because he ruffled the feathers of his fellow judges and his bosses with his concerns about the future of the court. He is not, however, backing down a bit about those concerns.
Let's stipulate, as the lawyers might say, that Howie Carr is no van Gestel fan; after losing repeatedly in his court, the Boston Herald columnist is probably headed back to "indentured servitude" at WRKO-AM at more than $1 million a year. But beyond Howie, van Gestel is a judge with many fans, the person most responsible for turning the business session of the state's Superior Court into the success it has become.
The business session was created in 2000 to handle complex business-related cases. The idea faced stiff resistance from many judges, who saw no need for a specialized court for business; judges like the variety of moving from criminal to civil cases and riding the circuit around the state. But in an era of specialization, a business court was seen as a key part of the state's business climate and as a way to meet competitive challenges from both the federal courts and the private justice dispensed by arbitration panels.
Van Gestel has been the court's primary judge from the beginning. A second session was started in 2002, with circuit judges rotating through. Now van Gestel, who officially retired two years ago at the mandatory retirement age of 70 but was recalled for another two-year term, is set to step down at the end of the year, marking a major transition for the court.
Last year, shortly after he was recalled, van Gestel wrote a 20-page analysis of the business court and its needs and sent it to the court system's three chief justices - Margaret Marshall, Robert Mulligan, and Barbara Rouse - and others. To say it was not warmly received would be an understatement.
In his analysis, which has never been reported until now, van Gestel expressed concerns about the very future of the business session and the lack of permanent judges. He also challenged the way judges are selected for the business court and urged greater resources for the court. "Massachusetts should not let its Business Litigation Session wither away," he wrote.
Rouse, the Superior Court's chief justice, asked the four other judges who had sat on the business court to respond. In their report, the judges praised van Gestel as "extraordinary," but then went on to disagree with him point by point. In particular, they said there was "no factual basis" for his pessimism about the future of the court and maintained rotating judges work just fine.
Some of Boston's best lawyers see a link between van Gestel's challenge of his colleagues and his exit. None, however, will be quoted on the record; they still have to practice here. "There is no question in my mind that his lack of renewal is a direct result of the response of the judges to his report," said one prominent attorney. Added another: "Allan is not their guy because Allan is no one's guy."
Van Gestel, who turns 72 in December and is fit as a fiddle, told me this week he is leaving not because he is being nudged, but because he is tired. He says he is leaving the court in "good hands." Then he adds: "My view of what the Superior Court ought to do has not changed a bit from what I wrote."
No one is more responsible for the success of Massachusetts' business court than Allan van Gestel. His colleagues on the bench would be wise to listen. Don't count on it.
Steve Bailey is a Globe columnist. He can be reached at bailey@globe.com or at 617-929-2902.
MEMOS FROM THE BENCH Read Allan van Gestel's memo and fellow judges' response at boston.com/business.
