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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