High court: Governors “alone” move individuals to bench

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STATE HOUSE, BOSTON, APRIL 7, 2015….A lawyer who twice failed to win the support of the council that confirms judges in Massachusetts was denied ascension to the bench Tuesday by the highest court in the state.

The Supreme Judicial Court ruled in favor of dismissing the lawsuit brought by Pittsfield attorney Michael McCarthy and Mary-Ellen Manning, a former member of the Governor’s Council, an eight-member elected body that provides advice and consent on the governor’s judicial nominees.

In a rescript opinion without any one justice identified as its author, the court ruled that McCarthy had no valid claims to a judgeship and his “unilateral act of reciting the oath of office” was an “empty gesture.” The opinion upheld a prior ruling by SJC Justice Margot Botsford.

Nominated by former Gov. Deval Patrick in August 2012 for a southern Berkshire County judgeship, McCarthy was rejected by the council on a 3-3 tie vote. Manning, who abstained, then wrote that she changed her vote, but the court decided the council had no rules authorizing Manning’s actions. Patrick submitted McCarthy’s name again in 2013, after Manning left the council, and he was rejected again in a 3 to 5 vote that February. Patrick abided by the council’s decision and wrote that he considered the matter “closed.”

About a week after the council rejected him for a second time, McCarthy claimed Manning’s letter put him over the top in the first round of voting and took the oath of office for the judgeship before two commissioners who are “authorized to administer oaths,” according to the court.

The justices, who all had to pass through the council on their way up the judicial ranks, ruled that after the council votes in favor of a nominee, the governor takes the final step of appointing that person to the bench and that final action is “for the Governor and the Governor alone to decide.”

Copyright 2015 State House News Service

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