McCarthy presses appeal for Southern Berkshire judgeship
PITTSFIELD -- Michael J. McCarthy is continuing to appeal his rejection by the Governor's Council for a Southern Berkshire District Court judgeship.
The Pittsfield resident and attorney, who unsuccessfully appealed the council's decision to Gov. Deval Patrick and to a single justice of the state's highest court, last month appealed to the full court.
On the Supreme Judicial Court website, an initial brief from the appellant is due to be filed by March 17. McCarthy is represented by Ralpher D. Pellegrino of Springfield, who could not be reached Tuesday for comment.
The suit was filed in July against Gov. Deval Patrick and Secretary of State William Galvin, seeking to have them affirm McCarthy's nomination to the bench, although the Governor's Council twice voted against him.
Following a request to the governor to confirm McCarthy's nomination, based on an unusual council voting sequence, Patrick announced in April that he could find no legal grounds to do so.
McCarthy and his supporters argued that a Governor's Council member had changed her initial vote on his nomination from abstaining to one in his favor, thereby breaking a tie vote and approving McCarthy as a judge.
In late December, Supreme Judicial Court Justice Margot Botsford, who heard the suit individually, granted a motion from the defendants to dismiss McCarthy's suit. He now is appealing that to the full court.
Botsford's ruling in part reflected the complex issues and convoluted path McCarthy's nomination has taken since the fall of 2012. While saying she was "constrained" by constitutional provisions governing the council to "conclude that McCarthy's complaint cannot proceed," the justice also commented that she found nothing to indicate the Pittsfield attorney was unqualified for the position.
The lawsuit focuses on a September 2012 meeting of the council, which confirms nominations by the governor for judgeships and other offices. The board's vote on McCarthy's nomination ended in a 3-3 tie, with Councilor Mary Ellen Manning abstaining.
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 what his supporters contend was a 4-3 vote margin.
Those councilors voting against McCarthy said they based it on his answers to their questions during nomination hearings before the council. Some of his supporters said they believed unexpressed political considerations thwarted the nomination, despite strong support from the legal community in the Berkshires.
Patrick 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 in December, Botsford agreed. She said Manning's written instructions to alter her vote were "not enough" to record a change.
In the suit, Pellegrino 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 is an attorney with George, DeGregorio, Massimiano & McCarthy in Pittsfield. He also served as city solicitor in Pittsfield and as an assistant district attorney.
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