Posts tagged "1005015"

McCarthy, et al. v. The Governor, et al. (Lawyers Weekly No. 10-050-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11625   MICHAEL J. McCARTHY & another[1]  vs.  THE GOVERNOR & another.[2] April 7, 2015. Governor.  Council.  Constitutional Law, Governor.  Secretary of the Commonwealth.  Judge.  Jurisdiction, Equitable.      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.   Background.  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 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, […]

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Posted by Massachusetts Legal Resources - April 7, 2015 at 3:43 pm

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