PITTSFIELD -- Gov. Deval Patrick has ended efforts to secure the nomination of a Pittsfield attorney to the District Court bench, which had spawned a topsy-turvy confirmation process before the Governor's Council.
Supporters had appealed to Patrick last month to overturn the council's rejection of Michael J. McCarthy for the Southern Berkshire District Court bench, but the governor said in a statement he couldn't impose his nominee.
In a letter released Tuesday to the eight members of the council, which reviews and votes on judicial nominations, Patrick said his legal counsel found he is "not empowered to issue a judicial commission to Mr. McCarthy."
He added later, "At this point, I consider the matter closed."
Two members of the council, Michael Albano of Longmeadow and Robert Jubinville of Milton, told The Eagle on March 22 that they believed a 3-3 tie vote of the council in September was broken in McCarthy's favor on Oct. 17 when a councilor came to the office to change and record her abstention as a positive vote.
Albano said in March that he and Jubinville had met with the governor to make their case and the issue of the tie vote was taken under review. Despite Patrick's statement, Albano, who represents a Western Massachusetts district on the council, said Tuesday he hasn't given up the fight and believes an appeal to the courts would be possible.
Reached late Tuesday, McCarthy said he wants to further evaluate the legal references included with the governor's statement before issuing a statement. But he added he does agree there was a recorded 4-3 council vote as of October that confirmed his nomination.
The governor's legal counsel, Kate Cook, provided a legal analysis supporting Patrick's decision, but Albano said it "does not meet the test" legally. He said he believes a court challenge could be mounted but conceded, "I am not sure I have the standing [to file a court action]."
Albano said he will likely hold a press conference after consulting with McCarthy and other supporters. "I am looking forward to continuing this battle," he said.
Patrick's letter stated further that the Massachusetts Constitution and relevant Supreme Judicial Court decisions make clear "the council may provide its constitutional advice to the governor only in a formal meeting; and ... only those council votes included in the record prior to adjournment of the meeting shall have legal force."
The chain of events following the council's deadlocked Sept. 26 vote on whether to confirm McCarthy was scrambled by the fact Lt. Gov. Timothy Murray was out of the country on a trade mission and unable to break the tie in favor of Patrick's nominee. A tie vote means a nomination has failed.
Patrick re-nominated McCarthy to the same post in January, but a reconstituted council, with four new members following the Nov. 6 election, voted 5-3 against appointing him as an associate District Court judge.
Those voting against McCarthy said they based it on his answers to their questions during nomination hearings before the council. They said that at one point he seemed to say he would consider helping a junior prosecutor who seemed about to lose a case on a legal technicality.
"Believing that he would make a great judge, I re-nominated Mr. McCarthy on [Jan. 3]," Patrick said in his letter. "On [Feb. 13], the council again failed to provide sufficient votes for confirmation."
He continued, "Leaving aside the dangerous precedent that would be set by authorizing councilors to change their votes after a meeting is adjourned, the question presented highlights the fact that the council lacks rules governing its procedures."
Patrick then recommended that councilors develop and publish such rules for the public's benefit.
Albano insisted Tuesday that decisions and legal references he and Jubinville submitted to the governor's counsel showed that "he [McCarthy] has been confirmed."
There are "a lot of holes in the governor's legal position," Albano added. He said the arguments and documents he provided showed that confirmation decisions by councilors "took place outside of meetings," and that councilor votes have been reversed after meetings took place.
In addition, Albano said, the Governor's Council "is not subject to the Open Meeting Law," and the constitution only calls for the "advice and consent" of the council without saying how that decision is to be made.
"I don't believe the final chapter has been written in this," he said.
A spokeswoman for the governor's office said Tuesday evening that no decision has been made on another nominee for the Southern Berkshire court.
McCarthy's rejection by the council sparked outrage from numerous supporters in the Berkshires and elsewhere. Support for McCarthy included a Supreme Judicial Court justice, a half dozen other judges, state lawmakers, Berkshire County District Attorney David F. Capeless, and individuals in the business and political spheres and community leaders -- including testimony offered at council meetings and about 30 letters.
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 governor for having nominated me and for the overwhelming support of these councilors, and for the encouragement I have received from the Berkshire County community," he said Tuesday.
The South County position became vacant with the retirement of Judge James B. McElroy. Judge Fredric D. Rutberg of the Central Berkshire District Court now is serving as acting judge for the Southern Berkshire court.
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