Respice, Adspice, Prospice: A Glimpse

into Justice Cordys Jurisprudence

Through Commonwealth v. Pon

MATHILDA S. MCGEE-TUBB*

The character of every act depends upon the circumstances in which it is done.
Oliver Wendell Holmes, Jr.

INTRODUCTION

D
uring his fifteen years on the Supreme Judicial Court (SJC), Justice
Cordy authored more than 380 majority opinions and sixty
concurring and dissenting opinions, many of which are reflective
of his judicial philosophy, personality, and style.1 Justice Cordy cherishes
history, and during his tenure on the SJC he looked for connections
between the wise guidance of our forefathers and contemporary issues. To
the same extent, he values the rule of law, and relished opportunities to dig
deep into the bedrock principles of our jurisprudential system. But Justice
Cordy in many ways is also the everyman. He is capable of recognizing
when the times have changed sufficiently that new rules are needed, and
when the rights and values at stake are so important that specific
instructions will ensure as fair, but individualized, an application of the
law as possible. Commonwealth v. Pon2 illustrates this side of Justice Cordy.
In Pon, a unanimous SJC reversed its prior understanding of the First
Amendment implications of a particular criminal record sealing statute
departing from the First Circuits precedent as well3and introduced a
new standard for determining when substantial justice will be served by
sealing a discrete subset of criminal records. This Article discusses the
context in which Pon was decided, and then walks through the Courts

* Associate, Mintz Levin Cohn Ferris Glovksy and Popeo, P.C.; Law Clerk to Justice Robert

J. Cordy (20132014); J.D., Boston College Law School; M.A., Columbia University; B.A.,
Oberlin College.
1 These counts were provided by the SJC Reporters Office to the author in a list of

opinions Justice Cordy authored.

2 14 N.E.3d 182 (Mass. 2014).
3 See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 500 (1st Cir. 1989).

107
108 New England Law Review On Remand Vol. 51 | 106

opinion authored by Justice Cordy. The Article closes with reflections on

how the Pon opinion reveals fundamental features of Justice Cordys
lasting legacy as a jurist.

I. Background

A. The Massachusetts CORI Act

The statute at issue in Commonwealth v. Pon, G. L. c. 276, 100C, second

para., is part of a comprehensive statutory scheme governing access to
criminal offender record information (CORI). Under the CORI Act,
individuals with criminal records can request that the Commissioner of
Probation seal certain records of convictions after a specified period of
time,4 or can file a petition with the court to have certain cases not resulting
in convictions sealed at any time.5 Massachusetts law has permitted
discretionary sealing of at least some criminal records since shortly after
the original CORI Act was introduced in 1972.6 General Laws c. 276,
100C, second para., which remains largely unchanged today, provides
that a court shall seal a criminal case ending in a dismissal or entry of a
nolle prosequi if it appears to the court that substantial justice would best
be served.7

B. Commonwealth v. Doe: The SJC Applies Strict Scrutiny to

Substantial Justice

In 1995, in Commonwealth v. Doe, the SJC interpreted the meaning of

substantial justice under 100C, second para..8 Several years prior, in
Globe Newspaper Co. v. Pokaski, the First Circuit had interpreted the same
language and concluded that the publics right of access to criminal records
under the First Amendment was implicated by the prospect of sealing.
Therefore, to demonstrate that substantial justice would best be served
by sealing, a defendant was required to make a specific showing that
sealing [is] necessary to effectuate a compelling governmental interest.9 In
Doe, the SJC adopted this reasoning, similarly concluding that the

4
See MASS. ANN. LAWS ch. 276, 100A (LexisNexis 2016).
5
See id. 100C, second para. (LexisNexis 2016).
6 See Commonwealth v. Pon, 14 N.E.3d 182, 189 (Mass. 2014).

7 Ch. 276, 100C, second para. (LexisNexis 2016). The relevant language of section 100C

was not changed by the 2010 CORI reform. See 2010 CORI Reform Explained How the Law is
Changing and When, ACLU OF MASS., https://aclum.org/sites/all/files/legislative/cori_reform_
explained.pdf (last visited Apr. 17, 2017).
8 See Commonwealth v. Doe, 648 N.E.2d 1255, 125961 (Mass. 1995); see also Pokaski, 868

F.2d at 500.
9 Pokaski, 868 F.2d at 51011; see Doe, 648 N.E.2d at 1261.
2017 Respice, Adspice, Prospice 109

imposition on First Amendment rights by the sealing of criminal records

required a heightened standard for sealing. Under the Doe test, a defendant
had to show that the value of sealing . . . clearly outweighs the
constitutionally-based value of the record remaining open to society, and
was required to demonstrate that he or she risks suffering specific harm if
the record is not sealed.10 Although the SJC recognized the adverse impact
that the availability of criminal records would have on defendants privacy
and employment prospects, it nonetheless determined that the public right
of access bore heavier weight.11
In furtherance of this heightened standard, Doe also adopted the two-
stage hearing process for resolution of petitions for sealing articulated in
Pokaski.12 Under this process, the defendant was required to make a prima
facie case at a preliminary hearing, and then to return for a more extensive
hearing on the petition to seal.13 The burden under this traditional
constitutional balancing test was a high one that few defendants could
meet, and therefore weighed heavily against discretionary sealing.14

C. 2010 CORI Reform

In 2010, the Legislature passed significant changes to the CORI Act,

including who may access CORI information and how. CORI Reform
introduced tiers of access, with very basic access for the public, standard
access for employers and landlords, and required access for employers
who must comply with certain statutory, regulatory, or accreditation
requirements, such as hospitals, schools, and banks.15 CORI Reform also
allowed individuals to access their own information, and provided
procedural protections against asking for criminal history information on
an initial job application. Simultaneously, CORI Reform reduced the
waiting periods for sealing of certain criminal records, signaling an
intention to expand access for some to criminal history information, but
limit the availability of criminal history information where sufficient time
has passed that the data is no longer meaningfully indicative of recidivistic
risk. Although CORI reform provided significantly greater access to
criminal records, it also demonstrated the Legislatures intention to protect
defendants seeking employment by limiting employer and landlord

10 Doe, 648 N.E.2d at 1260.

11 See id. at 126061.
12 See id. at 125960.

13 See id.

14 See Commonwealth v. Pon, 14 N.E.3d 182, 190 (Mass. 2014).

15 See Implementing CORI Reform, MASS. DEPT OF CRIM. JUST. INFO. SERV.,
http://www.mass.gov/eopss/docs/chsb/implementing-cori-reform.pdf (last visited Apr. 17,
2017); 2010 CORI Reform Explained How the Law is Changing and When, supra note 7.
110 New England Law Review On Remand Vol. 51 | 106

inquiries and offering other procedural safeguards.16

II. Old Rules Revisited: Commonwealth v. Pon

In 2014, the SJC had the opportunity to revisit the Doe standard
following the significant CORI Reform that was passed in 2010 and went
into effect in 2012. In Pon, the defendant had admitted to facts sufficient for
a finding of guilty of operating a motor vehicle while under the influence
of alcohol, and the judge ordered a continuance without a finding for one
year with a rehabilitation program.17 The case was ultimately dismissed on
the recommendation of the probation department.18 Three years later, the
defendant filed a petition to seal his criminal record under MASS GEN.
LAWS ANN. ch. 276, 100C, because his criminal record made it difficult for
him to obtain employment, despite his extensive volunteer work and
subsequently clean record.19 His petition was denied, and the SJC granted
his application for direct appellate review.20 Even though, during the
pendency of his appeal, the defendants record was sealed pursuant to the
administrative process of 100A and his own appeal rendered moot, the
SJC nonetheless exercised its discretion to revisit the standard for
discretionary criminal records sealing in light of its public importance.21
In a unanimous opinion authored by Justice Cordy, the Court took two
unusual actions: it revisited and revised its own precedent, and in so
doing, it departed from First Circuit precedent it had previously followed
on the applicability of a First Amendment presumption.
Justice Cordy began by assessing the legislative history and the
existing judicial standard for discretionary sealing under Doe before
turning to the recent reform of the CORI Act.22 He noted that in the 2010
reforms, the Legislature expanded access to official CORI records, but also
implemented additional procedural protections for defendants seeking
employment, enabled earlier automatic sealing, and expanded
discretionary sealing to a broader class of nonconvictions.23 He wrote:

16 See Chris Skall, Note, Journey Out of Neverland: CORI Reform, Commonwealth v. Peter

Pon, and Massachusettss Emergence as a National Exemplar for Criminal Record Sealing, 57 B.C. L.
REV. 337, 357 (2016); see also Gregory I. Massing, CORI ReformProviding Ex-Offenders with
Increased Opportunities Without Compromising Employers Needs, 55 BOS. B.J. 21, 2224 (2011).
17 Pon, 14 N.E.3d at 186.
18 Id. at 187.
19 Id. at 187, n.4.
20 Id. at 187.
21 Id. at 18788.
22 Id. at 18991.
23 Commonwealth v. Pon, 14 N.E.3d 182, 192 (Mass. 2014).
2017 Respice, Adspice, Prospice 111

Together, these reforms reflect what has been articulated widely

in criminal justice research: that gainful employment is crucial to
preventing recidivism, and that criminal records have a
deleterious effect on access to employment. . . . Sealing is a
central means by which to alleviate the potential adverse
consequences in employment, volunteering, or other activities
that can result from the existence of such records.24

Moreover, societal changesreflected in an age of rapid

informational access through the Internet and other new technologies
heightened what had always been a consideration for the Legislature into a
demonstrable legislative concern about the potential negative impact of
criminal records on reintegration.25 Justice Cordy observed that the
Legislatures intent in the 2010 CORI reforms was to recalibrate the
balance between protecting public safety and facilitating the reintegration
of criminal defendants by removing barriers to housing and
employment.26
With these legislative concerns in mind, the Court concluded that the
Doe standard required revision.27 The existing Doe test for sealing serve[d]
to frustrate rather than further the Legislatures purpose by imposing too
high a burden of proof on the defendant and articulating unhelpful factors
for the defendant to determine how to meet his or her burden.28 A new
articulation of substantial justice was needed to align with the expressed
intention of the Legislature.
While some courts may have simply rejiggered the language of the Doe
standard to tip the balance slightly more in favor of sealing, Justice Cordy
and the SJC wiped the slate clean and started at the beginning, asking
whether the First Amendment is indeed implicated by G. L. c. 276, 100C,
second par.29 Thus began the second turning point in Pon. Rather than
assume that the First Circuits reasoning in its 1989 Pokaski decision
continued to hold true, Justice Cordy conducted the constitutional analysis
anew. Ultimately, the SJC concluded that the records of closed cases
resulting in certain nonconvictions have not been open historically in the
same sense as other, constitutionally cognizable elements of criminal
proceedings, and that the records of closed criminal cases resulting in a
dismissal or an entry of nolle prosequithe limited categories 100C,

24 Id. at 193.
25 Id. at 186.
26 Id. at 193.

27 See id. at 297 ([I]t is apparent that the stringent standard for discretionary sealing we

articulated nearly twenty years ago, in Commonwealth v. Doe, 420 Mass. 142, 14952 (1995), no
longer achieves the proper balance of interests.).
28 Pon, 14 N.E.3d at 194.
29 Id.
112 New England Law Review On Remand Vol. 51 | 106

second para., addressesare not subject to a First Amendment

presumption of access.30 In so doing, the Court took a contrary position to
the First Circuit, acknowledging that it is not bound by any particular
conclusion aside from that of the U.S. Supreme Court.31 This conclusion
freed the Court and Justice Cordy in particular to craft an entirely new
standard, outside the confines of the strict scrutiny analysis required where
a constitutional right is at stake, but still bound by a paramount . . . [but]
not absolute . . . . common-law presumption of public access.32
In place of the heightened standard articulated in Doe, Justice Cordy
articulated a good cause standard.33 Under this standard, sealing may
occur only where good cause justifies the overriding of the general
principle of publicity.34 To assess whether a defendant has met his or her
burden, Justice Cordy directed lower court judges to balance the interests
at stake.35 But instead of leaving the judiciary in the muddy, undefined
waters of weighted scales, Justice Cordy provided a roadmap for
conducting this balancing.36 First, recognize the interests at stake: on the
one hand, the publics right to know in order to hold the government
accountable; and on the other, the shared interests of the defendant and the
Commonwealth in privacy that facilitates reintegration and self-
sufficiency.37 Then, assess several enumerated factors to balance these
interests, and add others if appropriate:
[T]he particular disadvantages identified by the defendant
arising from the availability of the criminal record; evidence of
rehabilitation suggesting that the defendant could overcome
these disadvantages if the record were sealed; any other evidence
that sealing would alleviate the identified disadvantages;
relevant circumstances of the defendant at the time of the offense
that suggested a likelihood of recidivism or of success; the
passage of time since the offense and since the dismissal of nolle
prosequi; and the nature of and reasons for the particular
disposition.38

In addition to revising the standard, Justice Cordy revisited the process

30 Id. at 19596. Nonetheless, the Court concluded that the records are subject to a
common-law presumption of public access, which is of paramount importance, but not
absolute. Id. at 19697.
31 Id. at 194.
32 Id. at 19697.
33 Id. at 197.
34 Pon, 14 N.E.3d at 313.
35 Id. at 314.
36 Id. at 313.
37 Id. at 199.
38 Id. at 200.
2017 Respice, Adspice, Prospice 113

for determining a petition for discretionary sealing, removing the

requirement of an initial hearing imposed by Doe and instead allowing
judgesas they had been doing alreadyto conduct a single hearing if the
defendant has made a prima facie showing for sealing on the pleadings.39
To ensure a measure of protection for the publics interest and import the
gravity of the decision, Justice Cordy further required judges to provide
notice of the hearing to the public, and to make specific findings on the
record regarding the interests considered and the reasons for sealing.40

III. Impact of Pon

Since Pon, the SJC has upheld the privacy protections afforded by
sealing. In Wing v. Commissioner of Probation, the SJC held that a
Massachusetts statute providing for mandatory discovery of a witnesss
criminal record in criminal proceedings did not supersede the statutorily
protected privacy interests in sealed criminal records.41 The Court
emphasized that the more compelling policy interestas between
reintegrating former defendants into society, which the sealing statute
advances, and the defendants interest in a more efficient and predictable
discovery process, which the mandatory discovery rules advanceis the
Legislatures concern that persons convicted of crimes have some
opportunity to become productive members of their communities once
they have paid their debt to society.42
In addition, lower courts in Massachusetts have applied the good cause
standard developed in Pon, requiring criminal defendants to show that
substantial justice would best be served by sealing.43 There are other
indicia that the guidance of Pon is being implemented. For example, the
Commonwealths website provides for easy public access to the
enumerated list of factors the court may consider in deciding whether to
seal a criminal record.44

39 Id. at 204.
40 Pon, 14 N.E.3d at 20405.
41 Wing v. Commr of Probation, 43 N.E.3d 286, 290 (Mass. 2015). In Wing, the Court

concluded that sealed criminal records are beyond the reach of G.L. c. 218, 26A, and the
automatic discovery provisions of rule 14 [of the Massachusetts Rules of Criminal
Procedure]. Id. Requiring disclosure of sealed criminal records would contravene the
explicit protections granted to persons under G.L. c. 276, 100A. Id.
42 Id. at 292.
43 See Pon, 14 N.E.3d at 186; see also, e.g., Commonwealth v. Brouillard, No. 14-P-16, 2014
Mass. App. Unpub. LEXIS 1062, at *2 (Mass. App. Ct. Oct. 10, 2014).
44 See How to Seal Your Criminal Record, MASS. CT. SYS., http://www.mass.gov/

courts/selfhelp/criminal-law/seal-record.html (last visited Apr. 17, 2017).

114 New England Law Review On Remand Vol. 51 | 106

IV. How Pon Embodies Justice Cordys Jurisprudence

The Pon opinion reflects several core features of Justice Cordys

jurisprudence: responsibility, courage, and pragmatism. These features
align, unsurprisingly, with the immemorial common-law command,
respice, adspice, prospice, use whats wise of the past, attend to the needs of
the present, but always with a vision of the future.45

A. Clear Path to Implementation

In Pon, Justice Cordy took care to acknowledge at the outset that the
core rights and interests at stake were of utmost importance: the publics
right of access to criminal court records and the States compelling interest
in providing privacy protections for former criminal defendants to enable
them to participate fully in society.46 In so doing, Justice Cordy and the
Court overall signaled that even if the rights and interests at issue were not
constitutional in nature, they were sufficiently significant to warrant
careful judicial consideration with each petition for sealing.
Among Justice Cordys opinions, Pon especially reflects the Justices
ability to conduct a nuanced assessment of individual and public rights
tailored to the particular circumstances at issue, embodying the astute
observation of his predecessor expressed in the epithet above.47 A strong
advocate for public access to the courtroom and a leader in developing the
rules for the medias access to the courts of the Commonwealth,48 Justice
Cordy has authored other opinions emphasizing and indeed prioritizing
the public right of access to judicial proceedings. For example, in
Commonwealth v. Fujita, a case heard during the same term as Pon, the SJC
held that a list of jurors who rendered a verdict in a criminal case must be
made available to the public in the same manner as other court records
absent a showing of good cause.49 In the opening text, Justice Cordy, the
author of the majority opinion, wrote that the publics long-term interest
in maintaining an open judicial process, as embodied in the United States

45 HON. BENJAMIN KAPLAN, INTRODUCTION: AN ADDRESS, THE HISTORY OF THE LAW IN

MASSACHUSETTS: THE SUPREME JUDICIAL COURT 16921992, at 7 (Russell K. Osgood, ed., 1992).
46 Pon, 14 N.E.3d at 188.
47 The character of every act depends upon the circumstances in which it is done.
Schenck v. United States, 249 U.S. 47, 52 (1919) (Holmes, J.).
48 See Press Release, Mass. Court System, Supreme Judicial Court Justice Robert J. Cordy to

Retire: Statement of Margaret H. Marshall upon Cordys Retirement (Feb. 3, 2016),

http://www.mass.gov/courts/news-pubs/sjc/2016/sjc-justice-robert-cordy-to-retire-2016.html.
Justice Cordys seat on the SJC is the same that Oliver Wendell Holmes occupied. See Justices of
the Supreme Court, MASS.GOV, http://www.mass.gov/courts/docs/sjc/docs/reporter-of-
decisions-sjc-justices-succession-chart.pdf (last visited Jan. 31, 2017).
49 23 N.E.2d 882, 885 (Mass. 2015).
2017 Respice, Adspice, Prospice 115

Constitution and Massachusetts common law, required such public

access.50 In Fujita, Justice Cordy aligned the SJCs analysis with that of the
First Circuit, concluding that in these circumstances the balance of interest
tipped clearly in favor of the openness of the judicial process.51 The
juxtaposition of Fujita and Ponheard during the same term, authored by
the same justice, and both applying a good cause standard, but placing the
presumption on opposite endsdoes not demonstrate an inconsistency of
views, but rather the very nuanced, circumstance-specific analysis required
of a skilled and thoughtful jurist.

B. Courage to Depart from Tradition to Attend to the Needs of the

Present

This recognition of the gravity of all of the rights at stake almost

glosses over the otherwise defiant act of the Court in Pon in not just
revisiting, but effectively reversing, its own precedent and waving
goodbye to a prior alliance with the analysis of the First Circuit of the very
same statutory language. As Justice Cordy has often noted, the SJC is the
oldest court in continuous service in the western hemisphere; accordingly,
it has on many occasions forged its own path and withstood the
consequences. Indeed, Pons departure from precedent, while praised by
some,52 was met with harsh criticism for its conflict with federal case law
on the First Amendment implications of criminal record sealing.53 Of
course, the SJC is not alone in declining to follow lower federal court
decisions,54 or in reversing its own precedent. But neither the permissibility
of, nor precedent for, doing so make it any less courageous. As Justice
Cordy emphasized in Pon, important policy considerations drove the
legislative reform, and bore in favor of a corresponding revision to the
judicial standard for sealing: [s]ealing is a central means by which to
alleviate the potential adverse consequences in employment, volunteering,
or other activities that can result from the existence of such records.
This departure from precedent signals another related feature of Justice
Cordys judicial analysis evident in Pon: his willingness to trust but verify

50 Id.
51 Id. at 88889 (citing In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir. 1990)).
52 See Shalaby v. Arctic Sand Techs., Inc., No. MICV2014-03621, 2014 Mass. Super. LEXIS

191, at *26 (Mass. Super. Ct. Dec. 16, 2014) (citing Pon for the proposition that courts are not
bound by decisions of Federal Courts except the decisions of the United States Supreme Court
on questions of Federal law).
53 See Jeffrey J. Pyle, The Unwarranted Secrecy of Criminal Information in Massachusetts, 59
BOS. B.J. 17, 20 (Fall 2015).
54 See, e.g., Pollution Control Fin. Auth. v. County of Somerset, 735 A.3d 633, 643 (N.J.

Super. Ct. App. Div. 1999); State v. Woods, 524 S.E.2d 363, 365 (N.C. Ct. App. 2000).
116 New England Law Review On Remand Vol. 51 | 106

when it comes to legislative action. Embracing the legislatures role as the

voice of the people, and the judiciarys role as providing a check and
balance to that power, Justice Cordy emphasized in Pon that a new
substantive standard was necessary to achieve the legislative purpose of
discretionary sealing as embodied in the 2010 revisions to the statutory
CORI scheme.55 In so doing, Justice Cordy indicated that it is the role of the
courts to give effect tonot frustratethe legislative intent behind
otherwise constitutional statutory schemes.56
Elsewhere, Justice Cordy similarly employed a close and careful
analysis of the legislative history to inform his understanding of the
legislative intent, and correspondingly the task of the judiciary in giving
effect to so much of the statutory law as is constitutional. For example, in
his dissenting and concurring opinion in Commonwealth v. Cole, Justice
Cordy disagreed with the Courts decision not to sever the unconstitutional
portions of a statutory scheme involving community parole supervision for
life (CPSL) for sex offenders from the constitutional portions.57 The
majority concluded that both the mandatory sanctions the executive branch
was empowered to impose on sex offenders who violated the terms of
CPSL (in derogation of core separation of powers principles), as well as the
CPSL monitoring provisions (which, while not unconstitutional standing
alone, would often lead to these sanctions), should be deemed
unconstitutional and unenforceable. Justice Cordy turned to the legislative
history behind the CPSL program, noting that the legislative intent behind
it was to ensure post incarceration, long-term monitoring of sex offenders
residing in the community.58 This monitoring, even without sanctions for
violations discovered during monitoring, could serve a purpose in and of
itself that achieved the legislative intent behind CPSL.59 It was not for the
judiciary, he reasoned, to prohibit that monitoring.
Justice Cordys sensitivity to the distinct but interdependent roles of
each branch of government is reflected, albeit in different tone and form, in
several dissenting opinions discussing the separation of powers. In his
dissent in Goodridge v. Department of Public Health, relying on an earlier SJC
decision, Justice Cordy noted that under core separation of powers
principles, courts must preserv[e] always to the Legislature alone its

55 Commonwealth v. Pon, 14 N.E.3d 182, 189 (Mass. 2014).

56 See id.
57 Commonwealth v. Cole, 10 N.E.3d 1081, 1095 (Mass. 2014) (Cordy, J., concurring in part

and dissenting in part).

58 Id. at 1096.
59 Id. at 1098.
2017 Respice, Adspice, Prospice 117

proper prerogative of adjusting the statutes to changed conditions.60 Once

the Legislature has fulfilled its function, the judiciary fulfills its own and, if
appropriate, makes its own adjustments, as in Pon.

C. A Pragmatic Path Forward

Finally, in Pon, Justice Cordy approached the task of creating a new

standard comprehensively, with a refreshing pragmatism that can often
elude the highest courts. The Pon opinion leaves judges with a
comprehensive checklist of factors to consider that are tidily compiled in a
single paragraph but then defined in greater nuance, and accompanied by
an invitation to treat the list as a flexible and open one.61 To demonstrate
how to apply the standard, Justice Cordy walked through how he would
apply these factors to Peter Pon, despite the fact that his own appeal was
rendered moot.62 Moreover, Justice Cordy revisited and simplified the
procedure for discretionary sealing, acknowledging actual practice by
judges and identifying a more efficient procedure that would not
compromise the important public and private interests at stake.63 These
final pages of the Pon opinion preempt a swift return of some iterative
application of the standard to the SJC, and enable the lower courts to begin
implementation immediately and efficiently, without waiting to see how
the chips fall or turning to appellate bodies for further guidance.

CONCLUSION

Through these telling features, Pon stands out as a quintessential Cy

opinion and one that will endure far longer than his years on the bench.
Pon is reflective of Justice Cordys overall judicial philosophy and
thoughtful approach to crafting legal standards for practical application.
Regardless of future reformation to the law of criminal record sealing, Pon
will remain a lasting illustration of the contributions Justice Cordy made to
the Commonwealth as a jurist.

60 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 994 (Mass. 2003) (Cordy, J.,
dissenting) (quoting Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass. 1996), cert.
denied, 520 U.S. 1131 (1997)).
61 See Pon, 14 N.E.3d at 20102.
62 See id. at 20203.
63 See id. at 204.