PITTSFIELD -- Michael J. McCarthy's lawsuit against the governor and secretary of state over his rejection for a Southern Berkshire District Court judgeship has been dismissed.
However, in her ruling on the defendants' motion to dismiss, Supreme Judicial Court Justice Margot Botsford also termed the case "unfortunate" and said she found nothing to indicate the Pittsfield attorney was unqualified for the position.
Reached on Tuesday, McCarthy said he appreciated the "very diplomatic and thoughtful" comments in the ruling, but he disagrees with aspects of its reasoning.
"Over the next few days, I will meet with counsel and evaluate whether to appeal to the full SJC," he said.
In her conclusion, Botsford wrote, "This is a highly unfortunate case. There is absolutely no indication in the record to suggest that McCarthy would not be qualified to serve as an Associate Justice of the District Court."
But she said she is "constrained" by constitutional provisions governing the council to "conclude that McCarthy's complaint cannot proceed."
The suit, filed in July against Gov. Deval Patrick and Secretary of State William Galvin, sought to affirm McCarthy's nomination to the bench after the Governor's Council twice voted against him. Patrick announced in April that he could find no legal grounds to challenge those votes, although McCarthy's supporters had urged him to do so.
The suit focuses on a September 2012 meeting of the council, which confirms nominations by the governor for judgeships and other offices, during which the board vote ended in a 3-3 split, with Councilor Mary Ellen Manning abstaining.
Former Lt. Gov. Timothy Murray, who normally presides over the council meetings, was out of the country on a trade mission and not there to cast a ballot for the governor's choice. However, on Oct. 17, 2012, Manning submitted written instructions to the council office in Boston that she wanted to change her vote to confirm McCarthy, providing a 4-3 vote margin.
Those voting against McCarthy said they based it on his answers to their questions during nomination hearings before the council. They also said that he seemed to say he would consider helping a junior prosecutor who seemed about to lose a case on a legal technicality.
Patrick then nominated McCarthy, who had overwhelming support from the legal and criminal justice community in the Berkshires, a second time, but a council with four new members following the November elections rejected him on a 5-3 vote in February.
Patrick said he concluded in April that it would set "a dangerous precedent" if a councilor could change a vote after and outside a formal meeting. In her ruling, Botsford agreed, saying Manning's written instructions to alter her vote were "not enough" to record a change.
For that, the justice concluded, it is "necessary for the council to act as a body in a formal meeting."
Her ruling also found that such a claim for relief cannot be lodged against a governor under the state's constitution. She added that the secretary of state, who is named because he is responsible for issuing a "judicial commission" when someone wins appointment to the bench, couldn't act because the governor had taken no further formal steps regarding the McCarthy nomination.
The suit, filed for McCarthy by attorney Raipher Pellegrino of Springfield, argued that the governor did not need to resubmit the nomination because McCarthy was already given "the advice and consent" of the council when Manning changed her vote.
McCarthy said of a possible appeal to the full SJC that the issue now is "down to a pure legal matter" of interpretation, and he believes "there is little case law in this area."
Michael Albano of Longmeadow, the Western Massachusetts representative on the council, has been a staunch supporter of McCarthy's nomination, and along with Manning, joined McCarthy in the suit. Albano said Tuesday he will urge McCarthy to appeal.
"I still believe my constituents in Berkshire County were disenfranchised; there is still no [new] judge in the district court," Albano said.
The South County court position became vacant with the retirement of Judge James B. McElroy.
McCarthy's rejection by the council sparked outrage from supporters in the Berkshires and elsewhere. Testimony in his support was offered at council meetings and about 30 letters were sent on his behalf.
McCarthy is an attorney with George, DeGregorio, Massimiano & McCarthy in Pittsfield. He also served as city solicitor in Pittsfield and as an assistant district attorney.
"I continue to be very grateful to the Berkshire community, my family and the Berkshire bar for their support," he said Tuesday.
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