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A special sitting of the Supreme Judicial Court was held at Boston on October 15, 2008, at which a Memorial to the late Justice Francis P. O'Connor was presented.
Present: Chief Justice Marshall; Justices Greaney, Ireland, Spina, Cowin, Cordy, and Botsford; retired Justices Joseph R. Nolan and Neil L. Lynch.
May it please the court: On behalf of Attorney General Martha Coakley, who is very disappointed that she could not be with us this morning, it is my honor to present, on behalf of the Commonwealth, a Memorial and tribute to Francis Patrick O’Connor. Justice O’Connor served this court with great distinction as an Associate Justice from December 4, 1981, until his retirement on September 1, 1997. He also served for five years as a judge of the Superior Court.
Born on December 12, 1927, in Boston, Justice O’Connor grew up in Belmont. He attended Belmont public schools and graduated from Boston College High School in 1945. He graduated from the College of Holy Cross in 1950 after serving two years in the United States Army in Korea. In 1953, Justice O’Connor graduated from Boston College Law School. He then served as a law clerk to Chief Justice Raymond S. Wilkins. He was the first former Supreme Judicial Court law clerk to become a justice on this court.
From 1954 until 1976, Justice O’Connor was in private practice, primarily civil litigation, first with Friedman, Atherton, King & Turner in Boston, and later with Mason, Crotty, Dunn & O’Connor, and then with Wolfson, Moynihan, Dodson & O’Connor in Worcester. During his years in private practice, he was a member of the Supreme Judicial Court advisory committee on the Rules of Civil Procedure, the Supreme Judicial Court’s mental health legal advisors committee, an elected member of the Shrewsbury town meeting, chair of the Shrewsbury zoning board of appeals, and chair of the Shrewsbury Coolidge School building fund.
One colleague described then attorney O’Connor as a "superb trial lawyer. . . . He was so civil to opposing counsel that it was a pleasure to work with him. He was the paradigm of what a trial lawyer is supposed to be: effective, competent and civil."
In 1976, Governor Michael S. Dukakis appointed Francis O’Connor to the Superior Court, where he served with distinction for five years and was widely recognized for the "respectful tone he set in the court room, his honesty, his integrity and the courtesy he extended to all." Upon the announcement in 1981 that Governor Edward J. King was to appoint Judge O’Connor to the Supreme Judicial Court, litigators who had appeared before him in the Superior Court remarked that Judge O’Connor was a "[p]re-eminent judge and a superb choice for the Supreme Judicial Court." Another said, "I think it is great that the Governor has appointed a man that’s respected by his peers." Justice O’Connor was the third appointment that Governor King made to the Supreme Judicial Court, and some thought that those appointments were of "conservatives." To that, one prominent member of the bar aptly responded, "When you add a brilliant judge to the court, it is semantic camouflage to categorize a man as conservative or liberal. What does it mean in terms of the law?"
Justice O’Connor joined this court on December 4, 1981, and first sat with the court in Boston on December 7, 1981. The first of the 437 majority opinions he authored, Gill v. North Shore Radiological Associates, Inc., was issued on February 1, 1982. His last majority opinion, Commonwealth v. Barros, was issued on July 28, 1997. During his sixteen years on the court, Justice O’Connor also wrote 111 dissenting opinions and 25 concurring opinions. He did not write those dissents and concurrences to be quarrelsome. As he explained, "Mere quarrelsomeness is not a virtue to be perpetrated or preserved." Rather, "a fair balance between collegiality and independence must be struck." And he struck that balance.
His opinions, be they majority, concurring, or dissenting -- were focused, clear, concise, and frequently quite eloquent. Two examples: Writing for the majority in an attorney discipline matter, Justice O’Connor rejected the argument that a stipulation between the parties excused a misrepresentation made to a court. He wrote, "[The attorney’s] representation to the court, that the total values of his combined personal and business assets was several hundred thousand dollars less than he knew it to be, was no less dishonest and inimical to justice because opposing counsel agreed to it." In his dissent in a case involving the denial of a motion for a new trial which, in his view, pitted finality against fairness, Justice O’Connor wrote, "Our desire for finality should not eclipse our concern that in our courts justice not miscarry."
About his first day on this court, Justice O’Connor said, "That first day, I remember thinking, 'Gad, what a stiff group this is. They speak in order, call each other "Judge."' I discovered as the junior person, sometimes, that just by listening instead of being just ready to make my point, that by the time they got to me, I should just keep my mouth shut because I was wrong and he was right, or she was right." He found that "all those little formalities, all together, . . . help[ed] to create the atmosphere in which important decisions . . . should be made."
In addition to the important decisions that the court made in the cases before it, Justice O’Connor was particularly proud of the work done by the substance abuse project task force which he chaired for the court. When the task force’s report was released in March, 1995, Justice O’Connor said that substance abuse was a "disease" that was "destroying our society." "The report, [he said,] makes clear we can do something about it [and] . . . [a]s difficult as it appears to be to discover the ways to stem the tide, we have to do it. We cannot not do it . . . . Lives can be turned around."
When asked two years later why courts should be involved in efforts to curb substance abuse, he replied that courts, "should be very much involved in doing everything we can do to diminish the immense suffering that goes on: the suffering of substance abusers and the suffering of the substance abusers’ families. It’s suffering that every one of us has to be concerned about, and those of us who are in a position to do something productive in that area, should do it . . . ."
And he explained how the courts could help stem the tide of addiction:
"The courts are in a very strong position . . . to use pressure on people who can choose between going into treatment and prison for a nonviolent crime. . . . When there is an option, it may or may not work for a particular individual, but the experience all around the country is that it does work very effectively."
Justice O’Connor remained as honorary chairman of that important task force after he retired.
When Justice O’Connor announced that he would retire several months before his seventieth birthday to allow his successor to join the court at the beginning of its next session, Chief Justice Herbert Wilkins praised Justice O’Connor’s "dedication to duty and constant courtesy to all." Chief Justice Wilkins also noted that Justice O’Connor’s "gentlemanly manner and [his] respectful consideration of the contrary views of others have a quality not often found these days." He also remarked that "[m]any times, [Justice O’Connor’s] attention to detail . . . saved the court from a misstep."
When Justice O’Connor did retire on September 1, 1997, retired Chief Justice Hennessey "stressed that among Justice O’Connor’s greatest skills as an appellate judge, 'has been his ability to appraise with meticulous care every detail of complex cases.'" Chief Justice Hennessey further observed:
"Justice Francis O’Connor came to the Supreme Judicial Court with an established reputation for courtesy and patience. He reaffirmed that reputation every day during the years that he served as my colleague. He obviously had no ego problems. He was an example for the bench and bar of the professionalism at its highest level."
Of his years on this court, Justice O’Connor said, "We get along very, very well; it’s been marvelous. In the sixteen years I’ve been here, I’ve never seen animosity, anger. We need to have a great deal of respect for each other because we resolve very heavy issues, a whole bunch of them, every single month for years on end."
As devoted as he was to the law, Justice O’Connor will be remembered today as, above all, a devoted husband, father, brother, and grandfather, and a man of deep and abiding faith.
On behalf of the Commonwealth, I respectfully move that this Memorial be spread on the records of the Supreme Judicial Court.
Madam Chief Justice, justices of the court, Madam Attorney General, and members of the family of Francis P. O’Connor: I am honored to speak for the bar of this Commonwealth at the memorial service for an honored member of this court and my friend and once colleague, Francis P. O’Connor. He was a great trial lawyer and an outstanding Superior Court judge and justice of this Supreme Judicial Court.
Francis P. O’Connor was born in Boston on December 12, 1927, the son of the late Thomas Lane and Florence Haggerty O’Connor. He lived in the greater Boston area before finally moving to Shrewsbury. He attended the Belmont public schools and graduated from Boston College High School in 1945. After starting at the College of the Holy Cross, he left to serve in the United States Army for two years in the occupation of Korea before returning to graduate in 1950, followed by Boston College Law School, from which he graduated in 1953 at the top of his class. He was then chosen by Chief Justice Raymond Wilkins for a year as his law clerk. He then joined the Boston law firm of Friedman, Atherton, King & Turner, of which I was then a partner. I remember Frank O’Connor as a tall, erect, handsome young man of polished bearing, modest, excellent manners, and a fine speaking voice. He was very bright, accommodating, extremely hardworking, and with a courtesy of manner that was very engaging. Early on in his practice he had what was to him a surprising experience in the reality of trial practice, a startling contrast from the cloistered chambers of the Chief Justice.
We were together in his first jury trial in Boston in the Suffolk Superior Court before a judge from a small District Court, sitting under statutory authority, in a very serious motor vehicle case. Our opponent for the disfigured plaintiff was an able, implacable, experienced, unpleasant trial lawyer. He had been reputed to say that he never felt a cross-examination of a woman was successful unless it ended in tears. The judge, incompetent and biased, was overwhelmed by my adversary and ruled against us on every contested issue -- not at all the fairness Frank O’Connor had expected to see in a trial, after a year with the Chief Justice. The charge to the jury was unintelligible verbiage which used all of the right words but were meaningless to a jury hearing them for the first time. As expected, we lost the case badly. The case went to the Supreme Judicial Court and, in one of Justice Ammi Cutter’s first opinions, was reversed on every ground and was later retried with a very different result. It was a hard and illuminating lesson for a young lawyer in his first jury trial.
We were together for four years, and I had the pleasure of attending his wedding to the very beautiful Ann O’Brien, his beloved wife of fifty-two years and with whom he had ten spectacular children who went on to accomplish much, including eight graduate degrees.
He left Boston and joined the Worcester bar and the law firm that became Mason, Crotty, Dunn & O’Connor -- first as an associate, and then as a partner, and then finally Wolfson, Moynihan, Dodson & O’Connor. There his great career at the bar and on the bench really began.
Speaking for this court on May 25, 1929, at the Memorial service of Charles F. Choate, Jr., the leader of the Boston and American bar, Chief Justice Arthur P. Rugg said this:
"The competition for prizes in the legal profession is sharp and severe. Many must fail. Only those can hope to win conspicuous success, who possess peculiar aptitude and large natural endowments, combined with well-documented and ceaseless work, indomitable perseverance, unflagging courage and unblemished character."
In a life at the trial bar, I know of no lawyer who measured up to those demanding requirements more than Francis P. O’Connor. We know there are no prodigies at the bar, but very early in his career,Frank O’Connor was soon at the head of his profession. Early on, he received and declined elevation to the bench. He largely appeared for the defense and was vigorous in looking to the representation of his clients but always with a courtesy to his adversaries, witnesses, judges, and court officers that was legendary. He never raised his voice, resorted to anger, truculence, or mean-spiritedness. It was the common belief in the Worcester and surrounding bars that he was the ablest scholar of all at the bar. His modesty in all things was exemplified by his biography in Who’s Who in America -- three lines, until he began listing his ten children.
He appeared in all courts, and many times before this court. He argued cases here involving those various matters that come to a busy civil trial lawyer: the salary of a public official; unsound mind of a testator; matters of landlord and tenant; nuisance; sufficiency of an auditor's finding; improper discharge of an employee for jury service; construction of an insurance policy; the fairness of a trial; responsibility of a corporate agent for a contempt of an injunction; and others in all jurisdictions.
He had a manner of arguing to a jury that most trial lawyers never favored: writing out his final argument and reading it to the jury. One of his contemporaries and frequent adversaries said that somehow he got away with this unorthodoxy because he looked like a choirboy and juries instinctively liked and trusted him.
He was reserved, but to those of us who knew him, he was a charming and delightful companion, well-read and able to state and write in clear and well-chosen language, the result of his reading and his reflections on what he read. This reserve accompanied him in his life but never impaired his professional efficiency, and carried over into the court room, where his innate good manners were apparent to all. Opposing counsel were always certain that he never overstated his case, and he insisted his witnesses conform to the facts and never exaggerate or dissemble. In a wide-ranging practice in many forums, he always accepted results, favorable or not, without complaint. His reputation for fair dealing was the very best.
It is not my duty to talk of him as a judge or his years on this court, but I knew him so well in that capacity and often appeared before him. I hope to be forgiven for a digression.
Chief Justice James P. Lynch, Jr., of the Superior Court was a great admirer of Frank O’Connor. He said this about him at the announcement of a scholarship in his name at the Boston College Law School:
"I learned from several sources about a brilliant trial lawyer named Frank O’Connor, who had been practicing for some time in the Worcester area. All the reports of his trial skills and abilities, his professionalism, his intelligence and his dedication to the law were so glowing that it was no surprise to me when he was appointed to the Superior Court as he was by Governor Dukakis in 1975 at the instigation of his colleagues at the Worcester Bar."
To my knowledge, this happened but once before, when the Berkshire bar asked Governor Herter to have Francis Quirico appointed to the Superior Court. After he was on the Superior Court, Judge Lynch said of Frank:
"I soon noted the respect and admiration accorded him by his colleagues on the court, the trial bar, clerks, court officers, juries, other court personnel and the legal community as a whole. Wherever he sat, he became known for fairness and evenhandedness, integrity, scholarship and knowledge of the law. He quickly demonstrated his ability to control a court room with dignity and communicate effectively with juries. He had a remarkable judicial temperament."
Justice O’Connor’s independence of mind led him, it was said, and this is disputed, to dissent more than any other judge on this court. In a brilliant address to the New England Appellate Judges’ Conference, he set out his view of the importance of dissent:
"Well-written dissents are entirely consistent with collegiality. In fact, well-written dissents expressing the writer’s disagreement with the Court promotes collegiality. A dissent worth writing goes beyond compulsory assertions that the Court is wrong and the dissenter is right. It usually takes a lot of time to write a good dissenting opinion. A dissent worth writing explains precisely why the dissenting few are correct and the Court’s decision is not. Unless a dissenting opinion does that, it should not be written, for it would detract from the Court’s image, and the Court’s image is important both to the Court and to the community that the Court serves. The justices have an obligation to bring their individual experiences and intellects to bear on every case in which they sit and the best way to do that is for court members holding a minority view to put that view in writing as persuasively as possible for his or her colleagues to consider. Although the minority may not be correct at a particular time in a particular place, that view is made prematurely available in the proposed reports for the instruction of a succession of lawyers, judges and legislators and it may do better later on. The dissenter’s view therefore retains a potential for influence through the years both in the local jurisdictions where after a while there may be a movement towards change . . . [T]he principle of stare decisis, not slavishly followed, is a valid principle, but sometimes not infrequently I think a good dissenting opinion results in the Court’s so distinguishing the case from subsequent cases and so limiting the rule of the case to its principal facts that its impact as precedent is virtually nullified."
Successful men and women often seek separation from their employment and families by joining organizations that are very much apart. They are found on the golf course, along the trout stream, at the ball game, but that was not Frank O’Connor’s way. His daughter, Ellen, summed up his life: "He was all about faith, family and the law."
For the great part of his life, he lived in Shrewsbury with his beloved wife and ten accomplished children. He was an active member of St. Mary’s parish and served the Roman Catholic diocese of Worcester in several capacities in the 1960’s and 1970’s, including as the chairman for the family life apostolate within the diocesan council. He was a member of the Massachusetts Citizens for Life and served the town of Shrewsbury as chairman of the zoning board of appeals, chairman of the Shrewsbury Coolidge School building committee and was a member of the Shrewsbury town meeting.
Whenever work would permit him, he would always be found at the games and activities of his children. He built a tennis court at his house, and there were frequent tennis matches among his neighbors and the many friends of his children in the "Sudden Debt Tennis Club," in which he participated as a serious player. He was a great gardener and was very proud of the roses and petunias which he raised at his home. The family never took vacations apart -- all twelve of them always together. Each summer the O’Connor family would take off in a station wagon, trailer, and a tent for camping trips in Maine, New Hampshire, Vermont, and Canada. To Frank O’Connor, his family, its nurturing, and its education were everything.
Frank O’Connor had a deep faith and belief in God and His goodness. At Frank’s funeral Mass, his son Brien, a prominent trial lawyer, reflected on his life in this manner:
"In remembering Dad’s life, we have continually returned to one thought: that Dad truly lived the words of the Our Father, 'thy will be done, on earth as it is in heaven.' Dad’s adherence to this simple teaching from the Our Father, in all aspects of his life, seemingly made even his most difficult decisions clear and simple for him. He consistently lived by the rules that he believed God had set for him: to be grateful for all that he had; to see the good in all people; to love, serve and care for others; to be kind, compassionate and understanding; to cherish all life; to always speak the truth; to be a 'gentlemen'; to work hard but play often; and to be happy and enjoy all of God’s gifts."
This extraordinary man, gifted much beyond the ordinary, has left us a year past from this jurisdiction, from which there is no return, but his faith, brilliance, performance in every facet of his accomplished life will remain with those who loved him and whom he loved, for always.
May it please the court. My name is MJ Moltenbrey. I had the privilege of serving as a law clerk to Justice O’Connor during the 1984-1985 term. I am honored to speak here today on behalf of his clerks and in support of the motion of the Attorney General and to share my personal remembrances.
I first met Judge O’Connor twenty-five years ago, almost to the day, when I came to the court to interview for the clerkship. I still remember that interview very well. Unlike some of my fellow law students, I did not enjoy interviewing. I was a bit shy and reserved. I did not consider myself to be particularly skilled at interviewing, and the prospect of an interview with a justice of this court was particularly intimidating. But I left that interview feeling that I had already begun to establish a special bond with Judge O’Connor, one that would endure in the years to come. It was one of the judge’s great characteristics that so many people who worked for him or met him felt that kind of a special connection.
My first impressions of the judge were that he was a man of great intellect, courteous and with a calm and distinguished demeanor befitting a justice of this court. But he was also a man who was without pretense, an attentive listener with a warm smile and a twinkle in his eyes. We talked of course about some shared experiences. I was then a third year law student at Boston College Law School. Judge O’Connor had also attended BC Law. He was the second BC Law graduate to be appointed to this court, following Justice Nolan, who had joined the court only a few months before him. And we talked about BC. We talked about the court and the role of a law clerk. Early in his career, Judge O’Connor had himself served as a law clerk to then-Chief Justice Raymond Wilkins. And he was, as has been noted, the first law clerk at the court who would eventually return to serve as a justice here. We also talked about my experiences the previous summer working at the antitrust division of the United States Department of Justice in Washington and my desire to return there after my clerkship. Antitrust was an area of the law that the judge knew very little about. But in typical candor and honesty, he freely admitted that and proceeded to question me at some length about the kind of work I had done and the nature of the cases there. He was always very curious and interested in hearing about something new.
What I remember the most about that interview, though, was how much time we spent talking about our families. This was fairly early during Judge O’Connor’s tenure on the court, but already he had an impressive collection of family photographs in his chambers, a collection that grew exponentially during the time of my clerkship and in the many years after. I come from what sometimes seems like a large family -- I’m one of five children -- but that of course seems like a very small family in comparison to the judge’s family. I got, that day, my first brief introduction to each one of the judge’s ten children. His pride and interest in each and every one of them was evident. Though what was perhaps more surprising was the amount of time that we spent discussing my family. I remember him asking about my parents and my brothers and two sisters and the interest that he showed in them and in what they were doing. I was thrilled, when shortly after the interview, Judge O’Connor called to offer me a position as one of his clerks.
Enough time has passed since then and there has been enough change in the makeup of this court that I can tell this story, I hope, without risk of offending anyone or betraying a confidence. On the very first day of my clerkship, when I came to the chambers and arrived at the court, one of the court officers looked at me, and he turned around to make sure there was no one else in hearing distance and whispered conspiratorially to me, "You got the best judge." I soon learned that this was a sentiment shared by many other employees of the court. I am certain that I speak for all of Judge O’Connor’s law clerks when I say there could not have been a better way to start a legal career than to have served as one of his clerks. He was a wonderful teacher. He was always appreciative of our efforts, open to questions, respectful of our opinions, patient with our mistakes, constructive with his criticism, and generous with his praise. I learned an enormous amount from him about how to be an effective lawyer.
I started my clerkship like many lawyers, fresh out of law school with a very intellectual, ivory tower understanding of the legal process. Legal issues were essentially abstract questions to be debated while Judge O’Connor certainly had a keen intellect and could always go straight to the heart of a legal problem, he approached cases with a healthy dose of practicality, reflecting in part his years of experience as a trial lawyer and as a Superior Court judge. When discussing the arguments on either side of a difficult issue, he often would emphasize the realities of a trial and the practical consequences of a decision for the lawyers and trial judges who would have to abide by it. He never forgot or let his clerks forget that cases were as much about people as they were about legal principles.
With perhaps a handful of exceptions, it was impossible to predict how Judge O’Connor would come out on any particular case based on the subject matter. While he was sometimes characterized as a conservative judge, during the year of my clerkship one legal journal published an article describing him as a closet civil libertarian. He approached each case and each issue on its merits, taking into account the law and the factual record, and his own experiences as a lawyer, a judge, and as a human being. While he was not an ideologue, he was a man of strong principles and integrity. His unwillingness to compromise those principles helped contribute to his reputation as a great dissenter. Whether that reputation was warranted over the full course of his tenure as a justice of this court I cannot say, but certainly during the year that I clerked for him, he did dissent from the court’s decisions more often than any of the other justices. He believed that he had an obligation to explain his view of a case if he did not agree with the majority opinion or some aspect of it. As he himself put it, "I don’t think that one can honestly sign onto a decision when he or she thinks it isn’t right. You are making a statement when you sign onto that document, saying 'I agree with this.'"
Of course each time the judge chose to issue a dissent, it added to the workload not only of the judge but of his law clerks as well, since it was his practice to have one of his clerks prepare the initial drafts of all of his opinions. Although we sometimes feigned dismay when the judge would return from consultations to tell us that he had taken one or more cases in order to prepare a dissent, I think that my co-clerk, Robert Allen, and I felt a certain amount of pride in the belief that we worked harder or at least had a heavier workload than the other law clerks. In fact, of all the cases that I worked on during that year, it is generally the cases in which Judge O’Connor dissented that I remember the best. Like most lawyers, I welcome a good debate. And for that reason I enjoyed working on dissents. By definition, the cases in which he dissented involved at least one challenging legal issue. Dissents provided an opportunity to write with a little bit more advocacy than we would in a typical majority opinion. These were also the cases where I learned the most, about the law and legal reasoning, to be sure, but also about handling conflict and disagreement, things that tend to pervade a lawyer’s professional life. Judge O’Connor believed that a dissenting opinion should be especially focused and succinct. At the same time, it should explain as clearly and persuasively as possible the reasons why he disagreed with the majority. First, there was the possibility that his opinion would actually persuade the other justices to change their decision. Second, by elucidating the issues, it might influence later decisions of the court. And finally, it might be persuasive to other jurisdictions.
Working with Judge O’Connor on these opinions helped me improve my legal writing enormously, but they also taught me a more valuable lesson about collegiality and professionalism. I remember one case in particular, where I, like Judge O’Connor, felt very strongly that the majority decision was wrong. The decision upheld the conviction of a man of a serious crime, and I immersed myself in the case with great enthusiasm, identifying numerous arguments in support of our position on several issues and also identifying arguments that had not been raised by the parties below. As I recall, I even identified a somewhat obscure argument involving the constitutionality of an aspect of proceedings in the trial court that had not been briefed. I presented the judge with an impassioned draft opinion, some forty pages long, replete with footnotes. The judge responded not with admiration for my persuasiveness and creativity. Rather, I was given a gentle but firm reminder that writing a dissent was not a competition in which we were trying to score as many points as we could against our opponent. He sent me back with instructions to start over, to focus on the specific issues that he had discussed with me. My second attempt was slightly more successful. I think my draft was down to fifteen pages and a bit more focused. But it probably continued to convey a certain degree of self-righteousness that only a very young lawyer can exude. The judge’s opinion was only six pages long, and it was an excellent and persuasive opinion. No matter how strongly Judge O’Connor felt that a majority opinion’s reasoning was flawed or that the result in the case was unsupported by the law or the record, he was never disrespectful of those with whom he disagreed. There was never a place in Judge O’Connor’s dissents for self-righteousness, sarcasm, or clever retorts. That is a lesson I have had occasion to remember many times since then.
I left Boston for Washington at the end of my clerkship, and while I came back to visit when I could, I have never moved back. This was, I believe, a slight disappointment to the judge, although when I would visit he was unfailingly enthusiastic and encouraging about my career. During those visits though, we inevitably spent much time, as we did in that first interview, talking about our families. In the years immediately after my clerkship, my mother was working in downtown Boston, and on a couple of occasions, I had lunch with both of them. He always greeted my mother with warmth and kindness. They were about the same age, from similar backgrounds, and my mother adored him as much as I did. To her he always referred to himself as Frank, but to my mother and to me, he was, and remains, simply, the judge. And I am sure that I speak for all of his law clerks when I say that back on that first day of work, the court officer was right. We got the best judge.
Madam Chief Justice, Justices, members of the family of Justice O'Connor, and friends: in keeping with our tradition we gather to remember an outstanding justice and celebrate the contributions he made to the implementation and growth of our law. Francis Patrick O'Connor was referred to in many ways -- trial lawyer, trial judge, justice, O'C (the initials identifying him in internal court memoranda), husband, father, grandfather, and brother. Let us reflect on each of these roles.
I first met Frank in 1976, when Governor Michael S. Dukakis made three appointments to the Superior Court on the same day -- David Mazzone, Francis O'Connor, and me. I felt an immediate bond with him -- we were both Irish with immigrant roots, we both grew up in working class families that had suffered financial adversity, we both had graduated from the College of the Holy Cross, and Frank's middle name, Patrick, was the name of my father. We became close colleagues in that great trial court where I soon learned of Frank's immense and well-earned reputation as a trial lawyer in Worcester County. Every case he tried was fully prepared and carefully presented, with full attention and devotion to his client's rights and deep respect for the judge and the jury. As a lawyer, he was an alert, prudent, and wise counselor with considerable knowledge of the law and practical matters, industrious, and especially graced with unusual common sense, which augmented his natural and acquired abilities.
New Superior Court judges often turned to Frank for guidance. Difficult issues of evidence or issues which needed to be clarified in jury instructions, were presented for solutions, thoughtfully considered by him, and resolved with advice to the new judge such as, "Why don't you consider this approach." His answers were invariably correct; his suggestions immensely practical. Trial judging is difficult -- more of an art than a science. Judge O'Connor mastered the art as few have, performing the duties of a Superior Court judge with diligence and efficiency, courtesy and consideration, complete impartiality, and, at times, courage in making a ruling that the law supported, but which he knew would draw unfair criticism. During all his time on the court, his work was of the highest order. As was said of another great trial judge, Judge O'Connor "had a love of justice and a desire to do justice, which were not the less ardent because they came from his mind no less than his heart, and because he felt that the best service both to the community and to the litigants was to give to each party justice according to the law . . . ."
It was not unexpected, therefore, when in 1981, Governor Edward J. King decided to return Frank to the institution where he had started his career as a law clerk, this time as a justice. In the eight years before I joined him on this court, I read the decisions authored by him with admiration for their compactness and lucidity, their fair and measured tone, and their responsiveness to the reasoned and orderly growth of Massachusetts law. Justice O'Connor recognized that new situations often required new rules, that precedents, from time to time, must yield to more enlightened conceptions of equal justice, and that precedents that no longer comport with science or reason or necessity have to be abandoned. So it was then, to pick one example, in the opinion in Commonwealth v. Mendes, 406 Mass. 201 (1989), Justice O'Connor, after consideration, and application, of the test articulated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), concluded for the court that the theory and practice of polygraphy, which we had accepted in two prior decisions, should no longer be admissible in criminal trials, either for substantive purposes or for corroboration or impeachment of testimony. The decision restored a measure of fairness to our system of criminal litigation, and his opinion stands as a classic rendering of the manner in which judges should approach, and decide, questions of validity and admissibility of disputed scientific evidence.
No reflection on Justice O'Connor could be considered complete without comment on his categorization as a great dissenter. First and foremost, the categorization is false. Justice O'Connor dissented no more, or no less, than any other justice on the court when we served together. But, his philosophy of dissent is what is worth noting. That philosophy is set forth in the address, already alluded to, given by him to the New England appellate judges conference entitled "The Art of Collegiality: Creating Consensus and Coping with Dissent." See Mass. L. Rev., Vol. 83, No. 3 (Winter 1998). The philosophy discloses that he did not think of judicial dissents as moments of poetic protest, or as occasions for expressing outrage over the fact that his views had not been accepted by the court. There was none of this perversity at work. Justice O'Connor disregarded trivial disagreements, and dissented only when the law or the record did not adequately support the court's result. He realized in so doing that his dissent would build confidence in the court as an institution, upgrade the performance of the justices in the majority, compelling them to think long and hard about the court's result and reasoning, and leave a permanent record outlining a legal path by which the court's opinion, over time, could be distinguished, if it needed to be, or disregarded if it was eventually shown to be more legally fallible than originally thought. As Justice O'Connor put it, "I do not think that a judge should sign on to an opinion, stating that he or she agrees with it, when that is not the case. Indeed, judges must be independent, and that independence does not conflict with, or compete with, collegiality, for which we all must strive." Justice O'Connor followed this philosophy to the letter. There is much that could be learned from Justice O'Connor's thoughts on dissents by certain members of the United States Supreme Court, whom I shall not identify.
Despite bringing to the court an immense array of intellectual talents, Frank came also with the deepest sense of humility that I have ever seen. Frank knew where he stood in the cosmic universe, that time in life was short, and that, as the Jesuits taught both of us, we best serve and fulfil our lives if we give to others. Frank articulated this message in a 1983 baccalaureate address given to the graduates at Shrewsbury High School, where he advised, "For what do we search [in life]? I suppose that we all look for some measure of success, but we are not all the same, and success means different things to different people. I do not intend . . . to define success, although I think that most will agree that success implies a balance between service of self and service of others, with the greater weight to be given to the service of others. Certainly, by serving others, a person honors himself or herself as well." Frank lived these principles each and every day.
Others today have spoken about Frank's deep and abiding love of his wife, Ann, his love for his children and grandchildren, and the affection expressed toward his extended family, namely his law clerks over the years, his secretary, Cathy MacInnes, and the court staff. These facts are well documented in the record. We must mention as well that Frank was a loving brother to two sisters, Joan and Mary Frances. Mary Frances died at eleven years of age because of scarlet fever. Joan became blind while young, also because of scarlet fever. Frank could not speak about his dear sister, Mary Frances, without his eyes filling with tears. Nor could he speak of Joan, who is with us here today, without tears in his eyes, because of the immense pride and admiration he had for her, the life she has lived, and the courage she displays every day. We say to Joan, the world is a better and more blessed place, because of the bond that your brother had with you and with Mary Frances.
Frank's relationship with his sisters and, indeed, with everyone, whether family, friend, or colleague, was rooted in his abiding faith. This strong faith was particularly manifested toward the end of his life. When he was at Notre Dame du Lac (an assisted living facility), his daughter, Ellen, would visit Frank, and they would walk, hand in hand, through the gardens or just sit, side by side, holding hands. Even though very ill, Frank, with the warm clasp of his hand, communicated extraordinary love, strength, and peace to Ellen, to Ann, to all of his children and grandchildren, and to others who sought to comfort him, thereby, in his own way, reversing the ordinary relationship between the well and the ill and conveying his immense strength and reconciliation to his family and others. It should not surprise anyone, therefore, that the headstone marking Frank's final resting place reads "O'Connor" in the center of the stone and, in small but dignified letters in the bottom right-hand corner, contains the words "Thy will be done."
Justices, family of Justice O'Connor, colleagues and friends: Frank O'Connor was a precious gift to all of us, and to the Commonwealth's system of justice. If asked why Frank O'Connor did what he did in his special way, we may suggest as an answer that he was doing what the prophet Micah instructed: "[W]hat does the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God."
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.