Berkshire lawyer’s dogged pursuit for judgeship is unprecedented

Michael J. McCarthy is not taking no for an answer.

McCarthy, a Pittsfield attorney and former city solicitor and assistant district attorney, has twice been rejected by the Governor’s Council for a judgeship in the Southern Berkshire District Court. The council is the elected eight member state body that reviews the governor’s court appointments, treasury warrants and requests for pardons and commutations.

McCarthy was first rejected last September when the council tied on a 3-3 vote. Councilor Mary Ellen Manning abstained on that vote and tried three weeks later to change her vote to approval, but in January the council rejected the vote change.

Gov. Deval Patrick resubmitted the nomination, but in February the council, with four new members and Manning no longer in office, again rejected McCarthy.  The second vote was 5-3 against the nominee.

On July 18 McCarthy, Manning and Michael J. Albano, Governor’s councilor for all of Berkshire County, Franklin County and the western portions of three other counties, filed an unprecedented civil suit in the state Supreme Judicial Court. They claim that Manning should have been able to change her vote after the meeting had been closed.

According to the State House News Service, a Patrick Administration legal counsel has advised the governor that once a meeting of the council has adjourned there is no opportunity for any individual to change his or her vote.

McCarthy and his attorney, Raipher Pelligrino of Springfield, did not return calls for comment, but Albano told the Berkshire Beacon this week that there have been four times when councilors from eastern parts of the state have been allowed to change their votes. He described the refusal to accept Manning’s vote switch as “political” and “voter disenfranchisement of Berkshire County.”

McCarthy was sworn in

“He’s a perfect nominee with unprecedented support by the community and I’ve gotten more calls on this matter than anything else since I’ve been on the council,” he said. Albano was first elected last fall and assumed his seat in January.

When asked if the council’s confirmation process should be replaced by the state Senate, as is done in several other states and is the subject of a bill currently in the Massachusetts Legislature, the councilor said that could be considered, but the problem would remain.

“You could have the same situation where a single individual, such as the Senate president, could hold up a nominee for any reason,” he said.

State Rep. William “Smitty” Pignatelli would consider such legislation, but pointed out  that it could cause other problems. “You would have to ensure that practicing attorneys did not participate in the process,” he said, “because a large number of attorneys serve as legislators and you wouldn’t want them to have to go before judges whose nominations they had vetted.”

The Lenox Democrat said attorneys in the Legislature would have to suspend their practices if the law was to change so they could participate fairly in the confirmation process.

It’s not likely that’s going to happen, as legislators’ outside legal practices can be lucrative.

Albano said that the Governor’s Council is not covered under the Open Meeting Law, but that at his first meeting he tried to get the council to adopt a rule that would require the council to conduct itself as if it were and that he also tried to get the council to adopt Robert’s Rules of Order.

“There are no rules whatsoever, we only rely on the state Constitution,” he said. The council turned down both proposed changes.

No change in the confirmation process will help McCarthy get a judgeship at this point, but it’s anybody’s guess how the state’s highest court will rule on the suit.

It will likely be heard by the court in September.

Posted by Bruce Garlow on August 29, 2013. Filed under Berkshire Beacon Hill Spotlight. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry