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MA Supreme Court Hears Rejected Judicial Nominee Case

By Aditi Mukherji, JD on October 31, 2013 | Last updated on March 21, 2019

A Massachusetts Supreme Judicial Court judge recently heard a lawsuit seeking to reverse Gov. Deval Patrick's rejection of Pittsfield lawyer Michael McCarthy's confirmation as a district court judge in Berkshire County.

In July, Councilor Michael Albano, former Councilor Mary-Ellen Manning and Pittsfield attorney Michael McCarthy filed a civil lawsuit in the state Supreme Judicial Court claiming McCarthy's judicial confirmation was wrongfully rejected by Gov. Deval Patrick and Secretary of State William Galvin.

The central question is whether Councilor Manning's vote in favor of confirmation did not count because she was absent from the council's meeting.

On Second Thought ...

One of the primary roles of the Governor's Council -- comprised of eight elected individuals -- is to vote on whether to confirm or deny the governor's judicial nominees.

Manning first abstained when the council voted on McCarthy's nomination last year. But the following month, she had a change of heart and recorded her vote in support of McCarthy in a register -- a vote that would tip McCarthy into a 4-3 victory, reports The Republican.

But Patrick refused to accept the vote -- and as a result, refused to name McCarthy a judge -- after his chief legal counsel advised that there is no legal basis for supporting a councilor who changes a vote after adjournment of the panel's formal meeting.

Manning, McCarthy, and others filed suit soon thereafter.

Unclear Council Voting Rules

Unfortunately, the validity issue of Manning's later vote is compounded by a lack of clearly stated law. According to The Republican, the council gleans its guidance from case law and the state constitution, but operates with few procedural rules.

The Massachusetts Constitution requires the council to perform its duties with appropriate formality. More specifically, the state constitution requires the council's resolutions and advice to be recorded in a register and signed by the members present.

Manning recorded her later vote in the register (21 days after the meeting in which she abstained) and she was present at the meeting. But the rules are remarkably silent on whether her recording and signing needed to be done during the meeting.

Open to Interpretation

"Massachusetts case law clearly demonstrates that, when a public body is required to take votes and keep a record of its action, the votes as recorded cannot be contradicted by later action outside of a meeting," the governor's chief legal counsel, Kate Cook, wrote in a memo, reports The Republican.

But McCarthy and Manning, citing case law, said the only procedural limit on the council's meetings is the requirement that actions be recorded in a register.

Since the ability for council members to change their minds and cast new votes could present a few logistical errors with confirmations, chances are that Manning was too little too late. But we'll have to wait and see how the issue shakes out.

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