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McCarthy v. The Governor

Supreme Judicial Court of Massachusetts

April 7, 2015

Michael J. McCarthy & another [1]
The Governor & another. [2]

Raipher D. Pellegrino for the plaintiffs.

Jo Ann Shotwell Kaplan, Assistant Attorney General, for the Commonwealth.

Michael C. Walsh, pro se, amicus curiae, submitted a brief.


[27 N.E.3d 829] The plaintiffs, Michael J. McCarthy and Mary-Ellen Manning, filed a complaint in the county court in July, 2013, against the Governor and the Secretary of the Commonwealth, seeking to establish that McCarthy had been nominated, confirmed, and appointed to a Massachusetts judgeship in 2012, and that he is therefore entitled to a commission for that office.[3] The plaintiffs alleged, in part, that when the Governor " nominates" a candidate for judicial office, the nominee automatically is " appointed" without further gubernatorial action when a majority of the Executive Council's members records its advice and consent to the nomination. The plaintiffs alleged that that is what happened here. They further alleged that the Governor, once a nominee has been confirmed by the Council, is required to sign a commission, and that the Secretary of the Commonwealth is obligated to issue the commission, but that the Governor and the Secretary failed to perform these duties in McCarthy's situation. The plaintiffs sought relief in the nature of mandamus, declaratory relief, and, in the alternative, equitable relief.

A single justice of this court allowed the Governor's and the Secretary's motion to dismiss. The plaintiffs appeal. We affirm the judgment of the single justice.


On August 23, 2012, the Governor nominated McCarthy for the position of Associate Justice in the Southern Berkshire Division of the District Court Department. The Executive Council held a hearing on McCarthy's nomination on September 19, 2012, and the Council's members voted on it at their next weekly meeting, on September 26, 2012. Three [27 N.E.3d 830] councillors voted in favor of the nomination, three councillors voted against the nomination, and one councillor, plaintiff Mary-Ellen Manning, abstained.[4] The nomination thus failed to garner the necessary votes for confirmation. Although the Council met again on October 10 and 17, 2012, it took no further action concerning the McCarthy nomination at those meetings. However, on October 17, Manning, who had initially abstained from voting, delivered a letter to the Governor stating that she now " advise[d] in favor of and consent[ed] to the appointment of" McCarthy, and that the " Council Register will so reflect." Neither the Governor nor the Secretary took any further steps concerning McCarthy's August 23, 2012, nomination in response to Manning's letter.

On January 3, 2013, the Governor resubmitted McCarthy's nomination to the Council, for the same judicial position. The Council considered this second nomination at its meeting on February 13, 2013. Again the nomination failed to garner the votes needed for confirmation. The Governor, accordingly, thereafter sent a letter to the Council stating that he considered the matter closed. On February 21, 2013, however, notwithstanding the adverse vote on his second nomination, McCarthy appeared before two commissioners authorized to ad-

Page 1009

minister oaths and purported to take the oath of office as an Associate Justice of the Southern Berkshire District Court. McCarthy apparently took the position, as he now claims in this action, that his first nomination had resulted in his successful appointment to the judgeship. For that he relies on Manning's letter to the Governor on October 17, 2012, outside of the formal hearing and voting process, which he claims was a valid vote in his favor and the final vote needed for his confirmation.

The Governor has never signed, and the Secretary has never issued, a commission to McCarthy.


The Governor is charged under the Massachusetts Constitution with the " obligation to nominate and appoint all judicial officers, subject to the advice and consent of the Executive Council." Opinion of the Justices, 461 Mass. 1205, 1207, 964 N.E.2d 941 (2012).[5] The Constitution contemplates that the Governor both " nominate" and " appoint" each candidate for judicial office. The nomination is separate and distinct from the appointment. Among other things, an appointment can occur only after the advice and consent of the Executive Council. See Opinion of the Justices, 210 Mass. 609, 611, 98 N.E. 101 (1912). See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 2 L.Ed. 60 (1803). The nomination comes first chronologically in the sequence, followed by the advice and consent of the Council, and then the appointment by the Governor.

It is wholly within the Governor's power and discretion to decide whom to nominate. See Opinion of the Justices, 461 Mass. at 1212. As we have said, however, the Governor's power to appoint is subject to the advice and consent of the Council. An appointment may occur only if the Council " shall approve of it, and take affirmative action [27 N.E.3d 831] which fairly may be called advising it." Id., quoting Opinion of the Justices, 190 Mass. 616, 620, 78 N.E. 311 (1906). That said, even if the Council consents to a nomination, the decision whether to appoint remains the Governor's prerogative. He must take some affirmative act " on the advice and consent of the [Council] to his own nomination," Marburyv.Madison, supra at 157, in order to effectuate the appointment. See Jugginsv ...

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