McCarthy sues over failed bid for Southern Berkshire District Court judgeship


PITTSFIELD -- Attorney Michael J. McCarthy is appealing to the state Supreme Judicial Court to overturn his rejection by the Governor’s Council for a Southern Berkshire District Court judgeship.

McCarthy, of the Pittsfield firm, George, Massimiano & McCarthy, is joined in the suit filed July 18 by Michael Albano of Longmeadow, the region’s representative on the council, and a former council member, Mary-Ellen Manning. Named as defendants are Gov. Deval Patrick and Secretary of State William Galvin.

Albano said his role in the action is "on behalf of Michael McCarthy and the voters of Berkshire County, who were disenfranchised in this process."

He has contended that McCarthy, who had overwhelming support among the judicial system in Western Massachusetts and among political and community leaders in the Berkshires, was rejected by council members from other regions for obscure political reasons.

Councilors who voted against McCarthy cited what they called a lackluster performance during his interviews before the council. They said that at one point he seemed to say he would consider helping a junior prosecutor about to lose a case on a legal technicality.

In the suit, the plaintiffs seek to have McCarthy confirmed as a judge.

Patrick nominated McCarthy for the post last year, but the Governor’s Council -- which must confirm judicial and other appointments -- split on a 3-3 vote, effectively rejecting the nomination. Former Lt. Gov. Timothy Murray, who chaired council meetings and could have broken a tie in favor of the governor’s choice, was on a trade trip to Germany.

Manning abstained during the Sept. 26 meeting, but on Oct. 17 she attempted to vote in favor of McCarthy’s bid, which would have broken the tie in his favor. The lawsuit contends the change should be allowed to stand, and that other councilors in the past have changed votes following a meeting.

The council in January rejected Manning’s bid to change her vote, as did Patrick, who said at a council meeting he feared it would set a "dangerous precedent" for future nominations.

The governor did, however, renominate McCarthy for the same position. But the council -- with four new members following the Nov. 6 election -- rejected him in February on a 5-3 vote. By that time, Manning was no longer on the council.

Albano and another councilor, Robert Jubinville of Milton, said in March they had met with Patrick and contended that McCarthy had, in fact, been confirmed in the first council vote. Albano said their research had concluded there is nothing in the state’s constitution preventing a councilor from changing a vote after a meeting.

But after asking for an opinion from his chief counsel, Patrick in April said it was determined only votes taken during meetings and recorded at that time could be considered valid. Patrick said then his legal counsel found he is "not empowered to issue a judicial commission to Mr. McCarthy." He added, "At this point, I consider the matter closed."

The governor’s office said this week he wouldn’t comment on the pending legal action.

McCarthy said Friday he would not be commenting on the suit and referred questions to his attorney, Raipher Pellegrino, of Springfield. Pellegrino could not be reached for comment.

Albano said Friday morning that he believes the suit will come before a single justice of the Supreme Judicial Court in September, but he added that the entire court could ultimately review the issue.

He said he has great respect for Patrick as governor and usually agrees with him, adding, "I take no pleasure in this action, but I can’t sit back and not represent my constituents in Western Massachusetts."

McCarthy "has satisfied all the steps in this [nomination] process and the state must issue a judicial commission," Albano said.

Galvin is named as a defendant because his office takes the final step in issuing a commission for judicial appointees.

To reach Jim Therrien:,

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