Neil L. Lynch
Associate Justice memorial
471 Mass. 1503 (2015)
A special sitting of the Supreme Judicial Court was held at Boston on June 10, 2015, at which a Memorial to the late Justice Neil L. Lynch was presented.
Present: Chief Justice Gants; Justices Spina, Botsford, Lenk, and Hines; and Retired Supreme Judicial Court Chief Justice Herbert P. Wilkins.
Chief Justice Gants addressed the court as follows:
Good morning. On behalf of the Justices, I welcome the Honorable Neil L. Lynch's wife, Kathleen, and many members of his family and close friends. I also welcome back to Boston Professor Jacqueline Nolan Haley, the daughter of former Justice Joseph R. Nolan. Many of you may remember that Justice Nolan, who was Justice Lynch's good friend and colleague, had passed away in 2013, so we held a memorial to honor him last year, at which time Professor Haley made the trip from New York to be with us. Thank you for making the trip again.
In addition, we welcome Justice Lynch's former secretary, Ginny Thurler, who was instrumental in planning this memorial sitting.
I would also like to welcome back to this court retired Chief Justices Herbert P. Wilkins and Margaret H. Marshall, and retired Associate Justices Ruth I. Abrams, Charles Fried, and Judith A. Cowin, as well as many members of the Massachusetts Appeals Court, the Trial Court Department, and the United States District Court for the District of Massachusetts. Here today are also Governor's Councillor Joseph Ferreira and Senator William Brownsberger. Thank you for coming.
I welcome several of Justice Lynch's law clerks, who are seated to my left. Many have traveled a distance to be here to pay their respects to the man who was undoubtedly a powerful influence in their lives.
The court now recognizes Attorney General Maura Healey.
Maura Healey, Attorney General, addressed the court as follows:
May it please the court: As the Attorney General of the Commonwealth of Massachusetts, it is my honor to present, on behalf of the bar of this Commonwealth, a memorial and tribute to the late Neil Lynch.
The Honorable Neil Lynch was appointed an Associate Justice of the Supreme Judicial Court by Governor Edward J. King in 1981. Prior to his appointment to the bench, Justice Lynch served as chief legal counsel to Governor King from 1979 to 1981. From 1965 to 1976, Justice Lynch was chief legal counsel for the Massachusetts Port Authority and was the secretary-treasurer there from 1975 to 1976.
In addition, Justice Lynch served as an adjunct professor at the New England School of Law from 1969 to 1972, and as an associate professor there from 1976 to 1978. He served on the bench for nineteen years. Following his retirement, he served on the Court Management and Advisory Board and was president and dean of the Flaschner Judicial Institute.
Once, while reflecting on his career, Justice Lynch wrote: "Being legal counsel to the governor of Massachusetts, Edward King, was the most fun, and associate justice of the Supreme Judicial Court was the most challenging."
Justice Lynch received his A.B. degree, cum laude, from Harvard University in 1952. He served as a first lieutenant adjutant in the United States Air Force during the Korean War before attending Harvard Law School and earning a L.L.B. degree in 1957.
Justice Lynch was born June 26, 1930, and grew up in Bridgewater, Massachusetts. He enjoyed boating, cooking, and reading; and he was an original season ticket holder of the New England Patriots. He is survived by his wife Kathleen, his son Michael, his daughter Marian, his stepdaughters Tracy and Holly, eight grandchildren, three step-grandchildren, and three great-grandchildren.
As best said by Mark Nielsen, who clerked for Justice Lynch during the SJC's 1989-1990 term, "He was a special man. A great judge, but more importantly a gentle and humble person."
On behalf of the Commonwealth, I respectfully move that this memorial be spread on the records of the Supreme Judicial Court.
Barbara Healy Smith, Esquire, addressed the court as follows:
Chief Justice Gants, Justices of the court, former Chief Justices Wilkins and Marshall, Madame Attorney General, Kathy, and other members of the Lynch family, I am honored to speak on behalf of the bar of the Commonwealth at this memorial sitting to pay tribute to the life and memory of a great person, lawyer, and Justice, Neil Lawrence Lynch, and to offer remarks in vigorous support of the Attorney General's motion.
If I have counted correctly, Judge Lynch spent eight or nine years in private practice representing both plaintiffs and defendants, eleven years as chief legal counsel for the Port Authority, three as counsel to Governor King and nineteen as an Associate Justice of this august court, with some stints early in his career as adjunct and associate professor at New England School of Law and, later, adjunct professor at the Massachusetts School of Law. After his retirement from this court, he worked as settlement counsel for the First Circuit Court of Appeals for eight years, and also served two terms on the State Court Management and Advisory Board, was president and dean of the Flaschner Judicial Institute, and served on the board of Caritas Christi Health Care system.
This is unquestionably an impressive résumé, evidencing impressive achievements and tremendous stature within his chosen profession. And yet I think all would agree that one of Justice Lynch's foremost qualities was his genuine humility. He was down-to-earth and approachable, showed no trace of self-importance, and was quietly guided by values of evenhandedness and respect for everyone and every point of view. His sense of humor was such that he could laugh at himself as heartily as anyone did, and indeed he appreciated colleagues, friends, and law clerks who treated him as he viewed himself and the world -- with a little bit of irreverence.
Among other traits that were familiar to those who knew and worked with him, Judge Lynch was admittedly direct. There was no question about his views, no coyness or false pretense masking his preferences. Accordingly, if you spent time with him you knew his priorities and passions, chief among them his family, his boat, travel and cooking, red wine (because "white wine is for wimps"), chocolate ("there is no point in having dessert if it is not chocolate"), the Patriots, and of course the law. He simply loved the law and delighted in the intellectual challenges of novel and complicated legal issues and facts. He loved and always spoke fondly of his law school teaching. And even as his health problems mounted in his last few years, he remained interested in cases and legal questions that were in the news, and delighted in conversation about them.
Judge Lynch started at Harvard Law School in 1954, after serving two years in California as first lieutenant adjutant in the Forty-second Air Rescue Squadron of the United States Air Force at the end of the Korean War. I suspect this veteran and son of Bridgewater arrived at law school with an already-developed sense of fairness and a deeper than average appreciation of the practical implications of legal principles and theories. He had an early introduction to the Supreme Judicial Court as a young attorney; I found half a dozen cases from his first decade of practice that went up on appeal -- with mixed results, as far as I could tell. He remained proud of Webster v. Blue Ship Tea Room,1 a case from his first job as an associate at Hale, Sanderson, Byrne & Morton in the early 1960s. The lawsuit had been brought against the firm's client, a restaurant, by a patron who claimed injury from a fish bone encountered in her bowl of fish chowder. I have no way to verify this, but Judge Lynch maintained that in the decision in favor of the restaurant, which overturned the trial judge's refusal to direct a verdict for the defendant after a jury had found for the plaintiff, Justice Reardon and the court used some of the language from the brief he had drafted, pretty much verbatim. That 1964 decision was one of the first to adopt a "reasonable expectation" test for the application of the implied warranty of merchantability. Bear with me, because if I give you some sense of the decision you will understand why Judge Lynch remembered it so clearly decades later, after he himself had become a Justice of this court.
"The culinary traditions of the Commonwealth," Justice Reardon wrote, not only the law, had a bearing on the outcome of the case. A gourmet cook, Judge Lynch delighted in the court's discussion of the history of the ancient dish of chowder, its recitation of recipes, and its conclusion both that one of "the joys of life in New England" was "the ready availability of fresh fish chowder," and that those partaking "should be prepared to cope with the hazards of fish bones," the occasional presence of which is to be anticipated and which do not, "in light of the hallowed tradition," impair the fitness or merchantability. Neil's view, as argued in the brief to the court, was that to require chefs to chop the fish so finely that they could be assured of its bonelessness would turn it into an "insipid broth containing the mere essence of its former stature as a culinary masterpiece." He was perhaps more pleased to see the decision referenced in a cookbook in the 1980s than he was that it was cited in treatises on the Uniform Commercial Code. The arguments Judge Lynch made to the court in that case as a junior lawyer in the early 1960s reflected his approach to the law and to life over his decades as a member of the bar and of service to the Commonwealth: intellectually honest, sharp, and imbued with overriding common sense.
Although I am speaking on behalf of the bar, I also was lucky enough to serve as one of Judge Lynch's law clerks. We all referred to him as "L-y," a nickname that came about because the judges were identified on circulation lists by their initials, and there was already an "L" (Judge Liacos) on the court when Judge Lynch joined, so he ended up with a two-letter identification. It was widely believed among his clerks for a number of years (although he denied there was any such predilection or pattern) that Ly would hire one clerk who shared similar political and ideological views, and one whose views were, shall we say, divergent. He wanted to be challenged, not treated with undue deference, to have lively debates in chambers, not to be handed drafts reflecting only what his clerks thought he wanted to hear. And debate we did -- about mandatory drug testing, about due process, about qualified immunity and supervisory liability for police misconduct, about the Sixth Amendment's confrontation clause and also about issues of the day that were not before the court. No topic was off the table, and Ly would often try to provoke debate with provocative or contrary comments.
I only learned at the end of my clerkship year in 1989 that he had very deliberately paired me with co-clerk John Skelton, a former New Hampshire police officer, in part because he anticipated sparks and conflict. We always suspected Ly was a little disappointed when we got along beautifully. After semble, when we met in his office to discuss the pending cases assigned to him, if I was given work on a criminal case one of them might goad me with the suggestion that "if the defendant was not guilty, the police would not have arrested him." I tried not to rise to the bait. But anyone who assumed Neil Lynch would cleave strictly to narrow and predictable views, based on the Governor who appointed him and on what they knew of his previous experience, was simply wrong. He had a sometimes stubborn independence of mind; his decisions were driven by a careful assessment of the law and particular facts; he strove to decide only what was necessary to decide and not overreach; and he approached every case with a compelling sense of fairness.
For every year that he was a Justice on the court, Ly had a holiday party to which he invited all of his law clerks and staff, his former colleagues from the Port Authority and the Governor's office, and his family. Even as the gathering grew in size, he insisted on making everything himself, from appetizers to squash soup to main course items to dessert. It was only in later years, after his beloved Ann died in 1990, and before he found new love with Kathy, that he started to allow a few of us to make and bring something. He delighted in the cooking, in the hosting, in the noisy laughter, in the bringing together of all the people with whom he had worked so closely in different arenas over the years. It was quite a party.
As I have said before, and as I think is an apt description he would appreciate, Ly did not have a kiss-my-ring bone in his body. I feel enormously fortunate to have known and worked with him, and I cherish the friendship we had in the years after my clerkship. I have many private memories -- as I am sure do all his family, colleagues, and clerks -- of his generosity of spirit, his kindness, his incisive intellect, his infectious sense of humor. But I will close with a simple story that I think speaks volumes about Judge Lynch as a person.
On his late-June birthday in 1989, towards the end of the year we clerked for him, John and I decided we would surprise him with a birthday lunch that we would make. We prepared some of his favorites, and John even made a chocolate raspberry cake for dessert. We brought everything in, including tablecloth and cloth napkins and flowers, and in late morning we started to set it all up on a table in our office (in the old "New Courthouse"), down at the back of the old Social Law Library, a floor beneath the Justice's chambers, which Ly had not been to in the entire nine months we had been there. As I recall, we put a cute sign on the door, "Chez Clerk," and may even have written out the menu for him.
All the other clerks were in on the surprise we were planning, and just about all of them asked, "What is the excuse for getting him down here?" or, "What ruse are you going to use?" "None," we told them, "we do not need one." They did not believe that, and several offered ideas for stories we could concoct to lure him to our office without arousing his suspicions. But sure enough, right at noon, I called him in his chambers. "Can you come down here for a minute?" I asked, offering no reason or explanation. "Okay," he said. That was all. Three minutes later he showed up, no questions asked. He was genuinely surprised by the lunch, and we had a very nice little celebration, but my enduring memory is of that short phone call, and his unhesitating response.
That this eminent, accomplished lawyer and Justice wore his rank so lightly only increased his stature in our eyes. Judge Lynch acknowledged, as not all prominent people do, that hard work, talent, and luck are at play in where we end up in life, and that awareness heightened his immense enjoyment in the legal and judicial career he loved. He encouraged us, by example, to aim high, maintain excellent standards, and not take ourselves too seriously. Although he has changed venue, those lessons, and the memory of that ever-present twinkle in his eye, remain vivid. Neil Lynch gave much to the Commonwealth, and to each of us who knew him. May we continue to treasure those gifts and be guided by his example.
Mark D. Nielsen, Esquire, addressed the court as follows:
Mr. Chief Justice, members of the court, members of the Lynch family and friends: I am Mark Nielsen and I was one of Justice Lynch's law clerks during the 1989-1990 term of the court.
I am grateful to Mrs. Lynch for asking me to speak on behalf of all of the Lynch clerks. No one can fully convey the thoughts and feelings of a group of nearly forty former law clerks, but I hope that in these remarks each clerk will find something that strikes a familiar chord or resonates with his or her own experience.
I met Judge Lynch in the spring of 1988, first when he presided at a moot court in which I was participating as a student at Harvard, and later when he interviewed me to be one of his clerks. I remember being "on my game" during that moot court argument -- and conversing easily with Judge Lynch as he questioned me from the bench -- but little did I know what a significant impact this would have on my later life.
Shortly thereafter, when I went to his chambers for my clerkship interview, the conversation turned to politics and Judge Lynch's perspective on the big events taking place at the time. 1988 was an interesting year in the political history of the Commonwealth. The Governor was running for President and appeared to have an inside track to win the Democratic nomination. With the White House having been Republican for eight years, he even appeared to be well-positioned to win the presidency.
He was not so well-positioned to win Judge Lynch's support. Judge Lynch had risen to prominence as an advisor and protégé of Governor Edward King, a strong rival of the Governor running for President, first as chief legal counsel to King when he was chairman of the Port Authority in the late 1960s and early 1970s, and then for three years as chief legal counsel to King when he was Governor in the late 1970s and early 1980s.
As he looked back on it, Judge Lynch saw his time with Governor King as a happy and rewarding period in his life. When he and I came together during my clerkship and discussed his time with Governor King, neither of us could have imagined that fifteen years later I would enter the same world when Governor Romney would invite me to serve as his chief legal counsel. Nor could either of us have imagined that, one day, I would be standing here, addressing the court, recalling these events.
During my clerkship, we would sit together in Judge Lynch's chambers, and after reviewing the cases assigned to him, he would frequently regale me with tales of political intrigue and insider shenanigans from his days on Beacon Hill. I remember him speaking of brinksmanship between the Governor and the Legislature and of rogue personalities on the Governor's Council. He expressed a certain grudging admiration for the iron-fisted control exerted by Senate President William Bulger, on one occasion going so far as to equate the concept of legislative intent with "what Bill Bulger had in mind."
He also enjoyed the theatrics and occasional tomfoolery practiced by the denizens of Beacon Hill. One story I remember him telling was of United States House Speaker Tip O'Neill making a surprise grand entrance into the Governor's Council chamber in the midst of a judicial confirmation hearing that had already been in progress for over an hour. O'Neill burst into the chamber through an ornate side door, surprising all assembled, to deliver a spirited endorsement for a judicial nominee then under consideration. This dramatic show of support produced the desired effect, and a previously tenuous nomination was revived and quickly confirmed. Judge Lynch remembered smiling in the midst of the hoopla, but also scratching his head because he did not remember there being a hallway or back office behind the ornate side door. When he later went back to check what was behind that door, he found, to his great amusement, a small broom closet equipped with a sink and toilet.
He also told a number of stories rooted in the fact that Governor King served with a Lieutenant Governor whom he had inherited, not chosen, and with whom he coexisted somewhat awkwardly. The limited role of the Lieutenant Governor is to act as Governor in the Governor's absence from the Commonwealth, including the signing or vetoing of legislation passed by the Legislature. During such times, it was Judge Lynch's role as legal counsel to make sure that no such thing happened, if necessary by taking physical possession of the enacted bills and avoiding requests that they be delivered to the Lieutenant Governor. For this reason, on more than one occasion the fruits of the General Court's deliberations went straight to the trunk of Judge Lynch's Chevrolet.
Years after Judge Lynch told me these stories, when I moved into the same office down the hall from the Governor that he had once occupied, my special bond with him developed a new dimension, as his Beacon Hill experiences, previously the source of stories and fun, became a critical guidepost for me in doing my job. I would often start my day with a clandestine call to him, tapping into his wisdom on the most vexing problems that I was likely to face that day. These calls might start with a question like, "How do I make the lawyers in the executive agencies think they work for me?" or, "What is the best way to give the Governor the bad news?" or, "The Governor's Council is at it again -- what can I do with those people?" His advice was always practical, insightful, and spot on.
One unmistakable facet of Judge Lynch was his utter lack of pretense. He put on no airs. He was a local kid made good, a regular guy, an everyman. And he gloried in being an everyman. He clipped coupons, read the Herald, and loved going to Patriots football games at no-frills Sullivan Stadium long before rooting for the Patriots became fashionable with the fancy crowd.
He had moonlighted as a bartender in the 1950s, helping to put himself through Harvard Law, and was proud of it. At the calling hours held after his death last October, I was pleased to see displayed a photograph of him from that time, smiling proudly from behind his bar, neatly bow-tied in a 1950s bartender uniform.
And I have always thought that Judge Lynch’s regular-guy experience and sensibilities informed his approach to his cases. He had an intuitive feel for the human element. He liked to dig into the facts to get a sense for what had really happened. Who had done what to whom. And he did not shield his eyes from the tougher side of life.
Judge Lynch's regular-guy background also informed his constitutional philosophy. One example: a hot topic in the late 1980s was whether sobriety checkpoints manned by the State Police on the highways of the Commonwealth were legally permissible. His adamant view was that they were not. And I am sure that this conclusion was based, yes, on his legal views, but at least partially on his feelings, as a regular guy, and a former bartender, in support of occasionally going out for a drink.
Judge Lynch was not a flashy figure or outsized personality. He viewed himself as coming to work each day to do a job that he was lucky to have. When he put on his hat and coat and headed out at the end of the day, usually to catch the commuter ferry back down to the South Shore, I suppose he faded into the crowd. And yet, at the same time, this everyman was very smart, could run circles around the best of them, and did. He had a fine practical intelligence, a fine intelligence simply. It was no accident that he breezed through Harvard College and Harvard Law School, or that he was later able to leap from private practice straight to the SJC without breaking a sweat.
And therein lay the internal tension that made Judge Lynch so unique. He was profoundly both: Hardscrabble local kid . . . and holder of two Harvard degrees. Unassuming everyman . . . and keen legal intellect. A small firm practitioner . . . who moved straight to the SJC.
This internal tension led to a certain basic shyness. A quiet observer, he was never eager to stand out in a crowd. I wonder if this did not come from feeling "different," first at home, in the neighborhood in Bridgewater, and later at Harvard, the school he loved to hate.
The two competing sides of Judge Lynch did, I believe, come together in at least one way that contributed immensely to making him a great judge. He possessed a love for truth, not in any fancy, highfalutin' sense, but in a way that was simpler, deeper, and very down to earth. When we were discussing a case, he would say to me, and I can still hear his voice, "Just tell me what happened." In the same way that he presented himself to the world, genuinely, openly, without pretense or affectation, not concerned with appearance or the way that anyone else would react, he liked to follow the facts wherever they led . . . to describe exactly what he saw . . . and to let the chips fall where they may. Any man who could, shortly before his death, say to a former clerk (and to himself) without fanfare, and in measured tones, "I'm dying," is a man attached to the unadorned truth.
Judge Lynch loved to be out on the water and had a boat. One highlight for the Lynch clerks was the annual outing on the Judge's boat, which he had named the Sui Generis. I had made it through law school without knowing the definition of that Latin term, and I remember going to the dictionary to learn its meaning: "unique, one of a kind, in a class by itself." May God rest the soul of Justice Neil L. Lynch, who was himself unique, one of a kind, sui generis.
Retired Chief Justice Herbert P. Wilkins responded for the court as follows:
Chief Justice Gants and members of the court, Attorney General Healey, Mr. Nielsen, Ms. Smith, members of the bar, the family of Justice Lynch, and guests:
I served with Neil for more than eighteen years on this court. Not many Justices have served that long, and far fewer have served that long together. During that time, even in the midst of the most heated discussion, I never heard Neil speak with anger or disrespect. He was a person of good will, with a fine sense of humor, and a deep love of life. He brought to the court experience in the executive department that none of his colleagues had. He also brought to the court a congenial temperament, well suited for dealing with problems collectively.
Neil often did not share the views of the Constitution of the Commonwealth that a majority of his colleagues held, particularly in the area of search and seizure. In many instances, he wrote in dissent when the court announced a State constitutional limit on police conduct. He did not deplore the views of his colleagues in an attack on their integrity. His dissents were well-expressed and soundly reasoned. In one dissent, however, he took the view that police conduct was unconstitutional under the State Constitution. He deplored police roadblocks designed to identify intoxicated drivers. He thought the inconvenience to the public too great to justify the intrusion.
There was, however, one area in which Neil's dissenting view had considerable merit, at least as an original proposition. He argued that the court should not grant to an administrative regulation the same deference that it granted to a statute. He thought that an administrative agency should be subject to a meaningful review that would not be provided if the court applied the relaxed standard applicable to an act of the Legislature.2 Unfortunately, the court had taken a contrary view decades earlier, and the majority felt bound by precedent.
Neil's interest in his boat and the sea has already been noted. In the summer I would often call him Captain Lynch. At summer consultations he would expound on miscellaneous outrageous conduct of other, obviously novice, boat owners. He must have been delighted when in September, 1988, he was assigned to write the opinion in a case involving the ownership of the cargo of the pirate ship "Whydah" that had been discovered one mile off the coast of Wellfleet under approximately fourteen feet of water and five feet of sand.3 The first paragraph of Neil's opinion sets out the circumstances in admirable language in the tradition of Joseph Conrad, C.S. Forrester, and Nordoff and Hall:
"History, legend, and the evolution of our legal and governmental systems converge in this tale of shipwreck and sunken treasure which begins in the early Eighteenth Century. In April, 1717, the notorious pirate ship 'Whydah,' laden with plundered cargo, crashed and capsized in a raging storm off the Cape Cod coast, disappearing beneath the sea, and evading discovery and salvage for the next two hundred sixty-five years. While all but two sailors perished in the wreck, the Whydah's legend survived, and the remains of the vessel were apparently located in 1982 after extensive research and searching. Giving spectral significance to the observation of Roger Byam, the narrator of 'Mutiny on the Bounty,' that a ship seems 'at times to have the very breath of life,' the ill-fated Whydah, nearly three centuries later, has sailed into this court's jurisdiction as the subject of a dispute between contemporary treasure seekers and the would-be modern sovereign of the coastal waters -- a conflict mired in competing claims of title to the shipwreck and its cargo, involving issues of Federal maritime and admiralty law, and disputed dominion over submerged lands in the marginal sea."4
He concluded the opinion saying: "Thus, the claim of the Commonwealth founders on the shoals of Federal sovereignty as surely the Whydah foundered on the shoals off Wellfleet . . . ."5
Neil had a solid sense of humor. Light touches, however, do not often find an appropriate place in judicial opinions. The parties, particularly, the losing party, do not appreciate less than a serious approach to their case. There are occasional exceptions, and Neil found one when he wrote a concurrence in a 1991 case.6 The issue was whether a social host could be liable because a guest had allegedly consumed alcoholic beverages and then injured the plaintiff in a motor vehicle accident. The opinion of the court had stated in dicta that "the host is like a bartender in a commercial establishment who can 'shut off' a person who is showing signs of excessive drinking."7 Neil, relying on his experience both as a bartender and as a social host, thought that a social host and a bartender were not in the same position. He suggested, for example, that, in a family setting, no person would have the temerity to suggest to his mother-in-law that she was getting drunk and, therefore, was cut off at the bar. To emphasize the point, he added that even greater folly might be required for a host to attempt to "shut off" a guest, as a bartender might, when that guest was a former Marine Corps drill instructor or a linebacker for the New England Patriots.
Neil was a decent, unassuming, and dedicated colleague with whom I was honored to have served. On behalf of the Justices of the Supreme Judicial Court, the motion of the Attorney General is allowed, and this Memorial is to be spread upon the records of the court.
1 Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421 (1964).
2 See Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulation, 400 Mass. 464, 471-472 (1987) (Lynch, J., dissenting); Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 557 (1985) (Lynch, J., dissenting); American Grain Prods. Processing Inst. v. Department of Pub. Health, 392 Mass. 309, 331-332 (1984) (Lynch, J., dissenting).
3 Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 502 (1988).
4 Id. (footnotes omitted).
5 Id. at 509.
6 Ulwick v. DeChristopher, 411 Mass. 401, 409 (1991) (Lynch, J., concurring).
7 Id. at 406.