27 N.E.3d 828
Mass.2015Background
- In Aug. 2012 the Governor nominated Michael J. McCarthy for Associate Justice, Southern Berkshire District Court. The Executive Council considered the nomination and on Sept. 26, 2012 recorded votes: 3 for, 3 against, 1 abstention (Manning).
- On Oct. 17, 2012 Councilor Manning (who had abstained) sent a letter to the Governor stating she then advised and consented to McCarthy, but the Council took no formal further vote or meeting altering the recorded September 26 tally.
- The Governor took no action to appoint McCarthy after the September vote or Manning’s letter; he resubmitted the nomination on Jan. 3, 2013, and the Council again failed to confirm it on Feb. 13, 2013; the Governor thereafter treated the matter as closed.
- McCarthy later took the judicial oath before commissioners and claimed the October letter completed the Council’s advice and consent and thereby produced an automatic appointment requiring issuance of a commission; the Governor and Secretary never signed or issued a commission.
- Plaintiffs sued (mandamus, declaratory, and equitable relief) seeking a declaration that McCarthy had been nominated, confirmed, and appointed in 2012 and was entitled to a commission; the single justice dismissed, and the SJC affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Manning’s post-meeting letter constituted the Council’s valid "advice and consent" completing confirmation | Manning’s letter should count as the decisive, supplemental vote completing the Council’s majority in favor | The Council must act formally at a meeting; a post hoc letter outside formal proceedings cannot alter recorded votes | The letter was invalid; the Council requires formal action at a meeting and the September vote (3–3–1) did not confirm McCarthy |
| Whether a confirmed nominee is automatically appointed without further gubernatorial action | McCarthy: once Council gives a majority consent, appointment is automatic and the Governor must sign the commission | Governor: appointment is a separate, discretionary executive act requiring the Governor’s affirmative action after Council consent | Appointment is not automatic; the Governor must take a clear, affirmative act to appoint informed by Council’s advice and consent |
| Whether the Secretary of the Commonwealth could be compelled to issue a commission absent a valid gubernatorial appointment | Plaintiffs: Secretary should be compelled to issue the commission once Council consent exists | Defendants: Secretary’s duty is ministerial only where the Governor has appointed; absent a valid appointment, Secretary has no duty | Secretary cannot be compelled because he had no legal duty absent a valid gubernatorial appointment |
| Availability of mandamus, declaratory, or equitable relief against Governor/Secretary to create appointment | Plaintiffs sought mandamus/declaratory/equitable relief to obtain commission and recognition of office | Defendants: relief unavailable against Governor; equitable relief cannot override constitutional/statutory requirements; mandamus unavailable where no ministerial duty exists | Relief denied: courts will not compel the Governor, and equitable or mandamus relief cannot supply actions constitutionally committed to the Governor’s discretion |
Key Cases Cited
- Opinion of the Justices, 461 Mass. 1205 (Mass. 2012) (describing Governor’s nomination and appointment powers subject to Council advice and consent)
- Marbury v. Madison, 5 U.S. 137 (U.S. 1803) (appointment occurs when the final executive act is performed)
- Juggins v. Executive Council, 257 Mass. 386 (Mass. 1926) (Governor’s appointment decision rests on his judgment even after advice of Council)
- Pineo v. Executive Council, 412 Mass. 31 (Mass. 1992) (Executive Council may adopt procedural rules governing hearings and votes)
- Scullin v. Cities Serv. Oil Co., 304 Mass. 75 (Mass. 1939) (Constitution contemplates formal Council action on matters before it)
- Milton v. Commonwealth, 416 Mass. 471 (Mass. 1993) (mandamus and declaratory relief will not lie against Governor in matters of discretion)
- Haverty v. Commissioner of Correction, 440 Mass. 1 (Mass. 2003) (equitable powers cannot be used to contravene statutory or constitutional requirements)