Chronicle of a Judgeship Denied: a Switched Vote, Two Defeats, and a Plea to the Supremes

Friday, December 20, 2013

The Governor’s Council has twice rejected Michael J. McCarthy’s nomination for a judgeship in the Southern Berkshire District Court in Great Barrington.

The first time was on September 26, 2012.  With one Council position vacant and one Council member abstaining, the Council voted 3-3 to confirm McCarthy.  A tie goes against a nominee.

Were it not for the absence that day of then Lieutenant Governor Tim Murray, who was on a trade-related trip to Europe, McCarthy would have been confirmed. 

The LG is normally the presiding officer at Council meetings and is allowed to vote if there’s a tie.  Murray would have voted for McCarthy because McCarthy had been nominated by Murray’s boss, Governor Deval Patrick.

Three weeks after that vote, Mary-Ellen Manning of Peabody, the Governor’s Councilor who abstained on September 26, went to the State House and recorded in an official register her wish to be counted as voting in favor of McCarthy’s nomination.

No one really knew what to do about Manning’s unusual move. 

McCarthy thought Manning’s notation in the Council register so significant that he took the judge’s oath of office in private somewhere.  I think he got some notary public or town clerk to do the job.  There was no public announcement of it.  

Having served as Pittsfield city solicitor and built a good practice as a family law attorney there, McCarthy is a fixture in western Mass legal circles, a known and respected commodity.  Among those who went on the record with the Council in favor of McCarthy’s nomination were Francis X. Spina of Pittsfield, an associate justice of the Massachusetts Supreme Judicial Court; Superior Court Judge Daniel A. Ford, and all seven members of the Massachusetts Academy of Trial Lawyers who practice in Berkshire County.

Said Pittsfield state rep Tricia Farley-Bouvier to the Berkshire Eagle newspaper: “Mike McCarthy is a very good man and an outstanding jurist, and he had gone through a comprehensive vetting and interview process before being nominated by the Governor.”

Governor Patrick, who has paid closer attention to the western part of the state than any governor in modern times, really wanted McCarthy on the bench.  So he nominated him again this past January. Four new members who’d been elected to the Council in November, 2012, had just taken their seats at that point.  McCarthy’s second nomination came up for a vote on February 13 and he lost outright by two votes, 5-3. 

Two different Councils in succession had thus found his candidacy underwhelming.

On July 18, McCarthy filed a civil lawsuit in the Massachusetts Supreme Judicial Court against Governor Patrick and Secretary of State William Galvin.  He was joined as a plaintiff in the lawsuit by Mary-Ellen Manning, who is no longer a member of the Governor’s Council, and by former Springfield Mayor Michael Albano, a member of the Governor’s Council whose district includes Berkshire County.

“I take no pleasure in this action,” Albano told the Berkshire Eagle, “but I can’t sit back and not represent my constituents in western Massachusetts.”  

The suit asks the Supreme Court to grant McCarthy the judgeship on the grounds that Manning’s vote switch was legally binding and that the governor wrongfully “deprived” him of the office by refusing to swear him in after Manning changed her mind.  Galvin was named as a defendant because the Secretary of State has the legal responsibility to issue a “judicial commission” to someone duly confirmed as a judge.

When Manning’s vote switch was first brought to his attention, Governor Patrick consulted his chief legal counsel, who did some research and informed him that only votes taken during Council meetings can be considered valid.  That’s only common sense, no?  Otherwise, everything the Council did would remain forever up in the air.

Through an attorney on the staff of the Attorney General, Patrick filed a motion to dismiss the suit.  Supreme Court Associate Justice Margot Botsford heard arguments for and against that motion on Oct. 24.  Her ruling is pending.  If she allows the suit to proceed, the entire Supreme Court could end up deciding the matter. 

District court judgeships are like rare, shining gems in the drab, unforgiving, post-recession, dog-eat-dog world that most lawyers inhabit.  They are highly-paid, secure positions: a judge practically has to be caught on camera committing a crime to be fired.  Judges in these courts are paid $159,694 a year and collect more than ample pensions when they retire.  McCarthy lost the opportunity for all that on a fluke because the Lieutenant Governor could not attend his confirmation hearing. 

That must hurt.  Bad.

I think that the Governor’s Council on a good day is two clicks away from a kangaroo court and that Mike McCarthy is qualified to be a district court judge.

Manning’s I-didn’t-vote-no-I-did routine is yet another argument for the abolition of the Council, a dysfunctional relic of the government Massachusetts had when it was a British colony. 

I wonder if McCarthy’s pain and anguish have blinded him to the fact that his quest to alter the outcome of his nomination, post facto, looks kind of desperate and sad.

That pain and that anguish do not justify throwing under the bus the gentleman who gave McCarthy two clean shots at the job of his dreams.  The cliché* applies, eh Governor? 

Out there in the Berkshires, life must be hell for a good, old-fashioned family lawyer.

*No good deed goes unpunished.

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