|By Chris Maza
Reminder Publications submitted photo
EAST LONGMEADOW – Governor’s Council member Michael Albano is one of the plaintiffs in a lawsuit filed against Gov. Deval Patrick on behalf of Pittsfield attorney Michael McCarthy.
The former mayor of Springfield discussed his involvement in the lawsuit, which was filed on July 18, with the media at his East Longmeadow office on Aug. 9, explaining that in his view McCarthy was confirmed for a judgeship in the Southern Berkshire County District Court, but the governor and Secretary of the Commonwealth William Galvin have prevented him from taking the bench.
“There’s a little bit of law here, there’s a little bit of past practice, [and] there’s a little bit of politics here and that’s what this suit encompasses,” he said.
Representatives from Patrick’s office said the governor would not comment directly on pending litigation.
According to a timeline produced by the Patrick Administration that cites the Executive Council Register, McCarthy, who was nominated for the position of associate justice by Patrick, received three yes votes and three no votes with an abstention by former Councilor Mary-Ellen Manning according to the roll call on Sept. 26 2012 – prior to Albano’s election to the council. Normally Lt. Gov. Timothy Murray would break a tie in such situations, however he was out of the state.
Chief Legal Counsel Mark Reilly informed McCarthy that he was denied.
Manning asked on Oct. 10, 2012 for a vote to take place regarding McCarthy, but no councilors supported her request and Murray stated that at that time Patrick had not made a decision to re-nominate McCarthy.
On Oct. 17, 2012 Manning hand delivered a letter to Patrick voicing her support for McCarthy’s appointment as a judge.
In her letter, provided to Reminder Publications by Albano, Manning asserted that McCarthy should be commissioned as a judge because Patrick never withdrew his nomination.
She also criticized the council for “irregularities and vote-swapping involved with this nomination,” the types of questions it asked of McCarthy, and the fact that none of those who voted against McCarthy provided reasoning for their decision.
She also called the fact the Patrick Administration would not support its own candidate “untenable.”
“Attorney McCarthy’s unblemished record and apolitical legal career spanning decades deserves better treatment,” Manning wrote. “The best way to serve the public is to now record my vote in favor of Michael J. McCarthy and against the collusion, back room dealing, inexplicable reversals and less than even-handed treatment he withstood.”
Albano said it was his position, as well as that of McCarthy and Manning that Manning’s letter should have acted as the tie-breaking vote and McCarthy should have been allowed to take the bench.
“It was a 3-3 vote prior to my being elected to the council. Councilor Manning then submitted her favorable advice and consent to the governor. The Governor’s Council is not subject to the open meeting law, it has no rule in place relative to how long to cast a vote,” he said. “Having said that, it’s our view that absent any rules, the constitution prevails and under the constitution of the Commonwealth, it says ‘advice and consent of the Governor’s Council.’ It doesn’t say how; it doesn’t say why; it doesn’t say when.”
However, according to a letter drafted by Chief Legal Council Kate Cook regarding McCarthy’s nomination, “The Massachusetts Constitution and relevant Supreme Court decisions make clear that: only the governor can determine when a vote is before the council; 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 are legally binding.”
Reilly replied to Manning’s letter that McCarthy would be re-nominated for a position, according to the Patrick Administration’s documentation.
McCarthy went through another nomination process during which the Governor’s Council denied the appointment, this time by a vote of 5-3.
However, despite being informed of his denial for a second time, McCarthy took an oath of office on Feb. 21 after receiving a letter on Governor’s Council letterhead signed by Albano and Councilor Robert Jubinville (D-Milton), stating he had received a majority vote from the council in its first vote in 2012 because Patrick never withdrew the nomination prior to Manning changing her vote from an abstention to a positive vote.
On April 2, Patrick said in a letter to the council that he believed McCarthy “would make a great judge,” but would not issue a commission despite the fact he took an oath of office because he did not receive enough votes during the council’s meetings.
He also called for the re-assessment of the Governor’s Council’s regulations
“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. I would respectfully suggest that the council undertake to develop and publish such rules for their own and the public’s benefit,” he said.
Albano said his principal interest in the case was ensuring the procedure for commissioning judges was the same throughout the state.
“I’ve been in politics for a long time and I’ve had my battles with Boston politicians for probably 30 years. It’s no the first time and probably won’t be the last time,” he said. “Every once in a while it’s good to shove back a little bit and [make sure] we are fairly represented at the State House for my constituents in Western Massachusetts.”
He asserted that in multiple cases judges sitting on the bench in Eastern Massachusetts courthouses were appointed under similar circumstances.
“In the past – and we’ve done substantial research on this – members of the Governor’s Council have changed their votes on four judgeships that I can find from Eastern Massachusetts outside of the formal assembly leading to the confirmation of those judges,” he said. “What’s good for Eastern Massachusetts should be good for Western Massachusetts.”
Albano said he hoped Patrick would remain a colleague and friend, but said he “was wrong on this one.”
“There’s no glee here, no pleasure taking, in filing this action against the governor,” he said. “Gov. Patrick is one of the best governors to serve the Commonwealth and I’ve voted with him 95 percent of the time on nominations. But at the same time I can’t sit back when I see things happening in Eastern Massachusetts and my constituents aren’t getting the same consideration in Western Massachusetts.”
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