LG Murray Holds Vote Open on Imperiled Judicial Nominee, Seeks Court Opinion

By Matt Murphy

STATE HOUSE NEWS SERVICE

STATE HOUSE, BOSTON, DEC. 7, 2011….With Gov. Deval Patrick out of the country and unable to help rescue one of his judicial nominees, Lt. Gov. Timothy Murray on Wednesday took the unusual and legally-questionable step of indefinitely holding open a roll call after a 3-3 tie vote appeared to doom the governor’s pick for a Barnstable County Juvenile Court judgeship.

The Governor’s Council tied 3-3 with Councilors Marilyn Devaney, Mary-Ellen Manning and Jennie Caissie voting against Mary O’Sullivan Smith’s nomination as associate justice of the Juvenile Court in Barnstable County and the town of Plymouth.

Since tie votes spell the rejection of judicial nominees, Gov. Patrick in the past has been called upon to take the gavel from Murray, who presides at council meetings, enabling the lieutenant governor to cast tie-breaking votes on the administration’s judicial nominees.

With Councilors Thomas Merrigan and Kelly Timilty absent for Wednesday’s vote, Murray initially said he would hold the voting open until next week when Patrick is due back from a trade trip to Chile and Brazil. But when challenged by the council Murray then said he would cast a yes vote instead. Murray cited “acknowledged ambiguity” from different legal counsels about his right to cast a vote with the governor not present.

“The governor’s not in the state. There’s some legal opinions that have been said that question whether the governor needs to be here or not,” Murray said.

While he never cast a vote Wednesday, Murray’s maneuvering to keep Smith’s nomination alive drew sharp and immediate rebukes from council members who said Murray had no legal authority to vote without the governor present, or hold open a vote that had been publicly posted.

“You didn’t have to call the vote,” Councilor Christopher Iannella said after the 3-3 vote occurred, suggesting the administration could resubmit Smith’s nomination instead if they think she would be confirmed by the full council.

Delaying votes to ensure Gov. Patrick’s presence is also not without precedent. The Patrick administration cancelled a scheduled council meeting in June, anticipating a tie vote on the nomination of former Rep. Christopher Speranzo as a clerk magistrate. With Patrick scheduled to be in Washington D.C., the administration delayed the vote one week, and Patrick was ultimately called upon to preside to help break a tie.

Patrick has helped break ties on three other occasions. His difficulty of late steering nominees through the council could raise the stakes in next year’s races for Governor’s Council, which usually attract little attention.

While not taking a vote to do so on Wednesday, the council and Murray decided to seek an advisory opinion from the Supreme Judicial Court over whether a vote can be held open and for how long, and whether the lieutenant governor has the right to vote when the governor is not present. Councilors and Murray agreed to draft a request for an advisory opinion and put that language before the council before sending it to the court.

“This administration can’t sustain a principled argument in favor of allowing this body to convene pursuant to a publicly noticed meeting and then pull the rug out from under this body,” Manning said.

Devaney accused Murray of making up the rules as he went along to circumvent the authority of the council.

“I think this is outrageous the maneuvering that’s going on here . . . ,” Devaney said. “It’s not pitch ’til you win, this is a government.”

The outcome, however, put Smith’s nomination into a state of limbo as the governor’s legal counsel will review the issue, and the Supreme Judicial Court will decide whether to get involved. Murray said Merrigan and Timility will not be allowed to cast their votes at a later date, and said the only unresolved question is his ability to vote.

“If I’m wrong, I’m wrong. If not, then we go forward,” Murray said.

Smith, a former appellate prosecutor in the Plymouth County District Attorney’s office, left the district attorney’s office in 1993 to go into private practice as a criminal appellate defense attorney. She returned to the Plymouth County DA’s office in 1997 where she has continued to work part-time for the last 14 years as the director of legal training and the director of the Community Based Juvenile Justice Program.

Devaney opposed Smith’s nomination over political donations made by her husband over the past three years, including $1,000 to Smith’s boss, Plymouth County District Attorney Timothy Cruz, and $900 to Gov. Patrick.

Manning also accused the governor’s office of patronage, and said in a prepared statement that she believed Smith would favor the district attorneys she has trained over the years.

“The public is not served by the endless flow of connected, unqualified friends being appointed to the bench. Attorney Smith leaves her part-time cushy job, where she sharpened no relevant skills, for a lifetime job with an even bigger pension and better benefits. It’s detrimental to public safety to continue to appoint underqualified people to the bench,” Manning wrote.

Caissie based her opposition to Smith’s nomination on the fact that she had not tried a case in juvenile court in more than 14 years, suggesting there are more qualified applicants in the state for the judgeship.

Caissie also accused Smith of violating “at least nine times” an executive order that bars nominees from making political contributions to the governor, lieutenant governor and Governor’s Council while their application is pending. The Executive Order 500, to which Caissie referred, bans contributions by the “person applying for appointment,” but says nothing of spouses. Smith made no political contributions herself.

The disagreement over whether a lieutenant governor serves as a voting member of the Governor’s Council will not be the only matter referred to the Supreme Judicial Court.

After voting unanimously in November to begin swearing in nominees and their witnesses during confirmation hearings, the council also agreed to refer a request drafted by Caissie to the Supreme Judicial Court seeking an advisory opinion about whether the Governor’s Council has the authority to administer a “truth telling oath.”

She said the executive director of the Judicial Nominating Commission delivered to her a legal opinion indicating that the council could administer an oath, but that it would be “symbolic” because the body lacks the Constitutional or statutory authority to require such an oath.

“People are absolutely appalled that nominees and witnesses don’t have to swear to tell the truth when they come before us in confirmation hearings,” Caissie said.

Councilor Charles Cipollini said requiring an oath to tell the truth would only further politicize the judicial nominating process and spark claims that nominees might have lied without any clear indication of who would be responsible for enforcing potential perjury cases.

“We should all be advocates for the truth, but we should also be advocates for the process that has existed for 200 years. This will make it more political,” Cipollini said. “Who will determine who lied? We’ll have hearings and votes going on forever, and we’ll get nothing accomplished. This is just going to become a political nightmare.”

Caissie immediately took exception to Cipollini’s comments, jumping up and suggesting that the Fall River Republican reconsider public service if he felt telling the truth was a political inconvenience.

“I call what goes on in here a political nightmare,” Caissie rebutted. “I think it’s a complete breach of the public trust that people can come in here and tell us whatever they want. If this is a political nightmare, maybe you should rethink your career in politics.”

The council did unanimously confirm Robert Ryan Jr. as clerk magistrate of the Norfolk County Juvenile Court. Ryan, a Suffolk Law School graduate who lives in Milton, worked as an assistant district attorney in Suffolk County during the 1990s and as first assistant clerk and acting clerk in the Norfolk Juvenile Court since 1997.

Patrick also nominated Bernard Goldberg for reappointment as public administrator for Middlesex County.

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