BOSTON (State House News Service) - With half of its eight members attending their first meeting, the Governor's Council got to work Wednesday with a gathering that devolved into a discussion about the panel's lack of rules and a pointed dispute over the vote on a western Massachusetts judicial nominee rejected by the council last year but resubmitted last week by Gov. Deval Patrick.
The council on Wednesday scheduled confirmation hearings on six judicial nominees submitted by Patrick, including attorney Michael McCarthy's nomination to become a Southern Berkshire District Court judge. McCarthy's nomination was rejected on a 3-3 vote last year but Patrick is hoping that given the significant turnover on the council, his nominee will get the green light the second time around.
Councilor Marilyn Devaney (D-Watertown), who voted against McCarthy's nomination last year, objected to Patrick's bid for another vote before the new council. Devaney said McCarthy was indecisive during his confirmation hearing last year, which she called a "dress rehearsal" for his next one, now scheduled for Wednesday for Feb. 6.
"To me it's demeaning," Devaney said. "This is a governmental entity. It's not pitch ‘til you win."
Lt. Gov. Tim Murray, whose absence from the meeting where McCarthy was rejected prevented him from casting a tie-breaking vote in favor of McCarthy, said that just as it was the prerogative of councilors to attend confirmation meetings, it's the governor's prerogative to resubmit nominations.
"That's the way it works," Murray said.
Councilor Jennie Caissie (R-Oxford) said McCarthy during his last confirmation hearing suggested he might offer hints to prosecutors while sitting as a judge. "That was the worst answer he could have given," Caissie said.
McCarthy, of Pittsfield, has practiced law since 1989 at the firm of George, DeGregorio, Massimiano & McCarthy. He served as Pittsfield's city solicitor and assistant district attorney in Berkshire County and Maine before joining the firm. He concentrates on civil litigation at his current law practice.
The brief discussion of McCarthy's merits as a nominee quickly turned into a longer debate over the vote on his nomination last year. New Councilor Michael Albano (D-Springfield) said he'd been told that the "recorded vote" on McCarthy's nomination was actually 4-3 in favor and asked for confirmation of that.
George Cronin, the council's executive secretary, said that on the day of the McCarthy vote, three councilors voted in favor, three against and former Councilor Mary Ellen Manning abstained. Cronin said that Manning later asked him to change her abstention to an affirmative vote.
Councilors on Wednesday debated whether Manning's written vote was an "acceptable vote," with Cronin noting the council is governed by the constitution and suggesting that whether her vote was acceptable might be "up to a court of law."
Murray cautioned that accepting votes not cast at meetings could theoretically lead to a situation where a judge, after being sworn in, could be removed from the bench. Murray could have cast a tie-breaking vote for Patrick's nominee last September but was traveling on a National Lieutenant Governors Association trade trip to Germany. On Wednesday, he urged councilors to cast their votes at meetings.
"If people feel strongly about a vote, at least in my humble opinion, they should be present at the meeting and they should be on the record here when the official vote is taken," said Murray, who presides at most council meetings.
The lieutenant governor's comment drew a quick response from Albano.
"This is a critical matter," Albano said. "The fact is that you were out of the country. Had you been here attorney McCarthy would be on the bench today."
Asked whether Murray supports McCarthy's nomination, spokeswoman Lauren Jones told the News Service, "The Lieutenant Governor remains supportive of Michael McCarthy and would have voted in favor of his appointment" had he been present for last year's vote.
McCarthy's hearing last year was held on Sept. 19 and the council voted on his nomination on Sept. 26.
In an Oct. 17 letter to Patrick, Manning wrote that she was providing her "favorable advice and consent" to McCarthy's nomination, saying his "unblemished record and apolitical legal career spanning decades deserves better treatment."
In her letter, Manning alleged "collusion among the Councillors" and "irregularities and vote-swapping" with respect to McCarthy's nomination. Suggesting Murray could have cast the tie-breaking vote for McCarthy during meetings in October, after the tie vote in September, Manning wrote "this administration's failure to support its own nominee is untenable" and further questioned "why isn't the administration telling the public the reason it doesn't support its own nominee." Manning also wrote in her letter that she "never anticipated that the administration would refuse to vote on its own nominee."
In response to Manning, Patrick's legal counsel
Mark Reilly on Oct. 25 wrote that the governor's confidence and enthusiasm for McCarthy's candidacy was "unshaken" and said the governor's office was pleased to learn that Manning wished to register a favorable vote. "Needless to say, your abstention at the time of the original vote is the reason the Council deadlocked," Reilly wrote. "The Governor will resubmit the nomination in due course and looks forward to your support." Reilly wrote that the administration had "no basis for commenting" to Manning's charges of "collusion or other agendas."
Manning did not seek reelection and her bid to join the Senate ended when she lost a September primary.
At an Oct. 10 council meeting, Manning had brought up the possibility of holding another vote on McCarthy's nomination but Murray declined to go forward with it, saying Patrick had not decided whether to resubmit the nomination. After that meeting, Manning declined to explain her abstention, saying she would explain once the News Service had heard the reasons behind the other six councilors' votes. "When you're done with that, I'll answer your question," Manning said. Asked after that meeting about McCarthy's nomination, Murray told the News Service, "It's the governor's decision."
Noting it appeared the council has no process for reconsidering its votes and no ban on casting votes in writing, Albano on Wednesday suggested that the council adopt Robert's Rules, which govern scores of other government boards and councils.
After Murray said the Patrick administration was "ready to have a conversation" about rules and suggested that perhaps a group of councilors could work with the governor's legal counsel to discuss the issue, Caissie suggested one council policy: "to respect the vote of a prior council." Councilor Christopher Iannella, who like Devaney and Caissie voted against McCarthy, said he agreed.
Councilors did not appear interested in pursuing an idea offered by new Councilor Robert Jubinville (D-Milton). Saying it might clear a path for McCarthy's swearing in, Jubinville suggested that the council ask the Supreme Judicial Court whether the 4-3 vote, which included Manning's late vote, should stand.
The council scheduled five other hearings on judicial nominees:
-- On Jan. 16, the council plans to hear from Superior Court nominees Angel Kelley Brown and Robert Gordon. Kelley Brown in 2009 was confirmed as a judge and sits in Brockton District Court. Gordon since 1995 has been a partner at Ropes & Gray LLP, where he started in 1987 as an associate in the litigation and labor and employment groups.
-- On Jan. 23, the council is scheduled to sit with Superior Court nominee Brian Davis and Appeals Court nominee Geraldine Hines, who has served on the Superior Court bench since 2001 and as the Regional Administrative Judge for Civil Business in Suffolk County since 2009. Davis has spent his legal career in Boston at Choate, Hall & Stewart LLP, as an associate from 1985 to 1992 and as a partner since 1993.
-- The council scheduled a Jan. 30 confirmation hearing for circuit District Court nominee Mary Beth Heffernan, the outgoing state public safety secretary.