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revision and are superseded by the advance sheets and bound 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 & another1 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 

 

1 Mary-Ellen Manning, a former member of the Executive

Council.

2 Secretary of the Commonwealth.

3 Michael J. Albano, a current member of the Executive

Council, was also named as a plaintiff in the complaint. He is 

not a party to this appeal.
2

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, 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 

administer 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 

 

4 The Governor presided over the September 26, 2012, 

meeting. The Lieutenant Governor was not in attendance.
3

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.

Discussion. 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 (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 (1912). See also 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (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 which fairly may be called advising 

it." Id., quoting Opinion of the Justices, 190 Mass. 616, 620 

(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," 

Marbury v. Madison, supra at 157, in order to effectuate the 

appointment. See Juggins v. Executive Council, 257 Mass. 386, 

 

5 Specifically, Part II, c. 2, § 1, art. 9, of the 

Constitution of the Commonwealth provides:

"All judicial officers . . . shall be nominated and 

appointed by the governor, by and with the advice and 

consent of the council; and every such nomination shall be 

made by the governor, and made at least seven days prior to 

such appointment."
4

389 (1926) ("Whether the Governor takes advice or not, his 

conclusion must rest finally upon his own judgment").

The Governor's appointment of an individual to judicial 

office becomes effective "when the last act to be done by the 

[Governor is] performed." Marbury v. Madison, supra. See 1 Op. 

Attorney Gen. 140, 141 (1894). At a minimum, this requires that 

the Governor communicate unequivocally his determination, 

informed by the Council's advice and consent, to exercise the 

power of appointment. Rep. A.G., Pub. Doc. 12, at 96 (1972) 

("Appointment occurs, of course, when the Council has given its 

advice and consent to the nomination and the judicial commission 

has been issued" [emphasis added]). The appointment, like the 

nomination, is highly discretionary, and it is for the Governor 

and the Governor alone to decide. There is nothing ministerial 

about the Governor's decisions to nominate and appoint. 

Contrast Rep. A.G., Pub. Doc. 12, at 107 (1984) (describing 

Secretary's role in judicial appointment process; stating that 

Secretary "functions in a . . . ministerial manner with respect 

to gubernatorial appointments"). As stated in Opinion of the 

Justices, 190 Mass. at 619-620, when the Governor has the power 

to act, "[t]he act, first of all, and afterwards for all time, 

is the act of the Governor."

There is nothing in the record before us to suggest that 

the Governor took action to appoint McCarthy to the vacant 

judgeship at any time. To the contrary, the evidence is that 

the Governor did not proceed with an appointment in any fashion 

after the vote of the Council on McCarthy's first nomination on 

September 26, 2012, or after Manning's letter on October 17. 

Instead, he resubmitted the nomination to the Council. 

Likewise, after the Council's vote on the second nomination, the 

Governor indicated that he considered the matter closed. Thus, 

even if we were to assume for the sake of discussion, as the 

plaintiffs argue, that the votes of the councillors at the 

September 26 meeting, supplemented with Manning's purported vote 

by letter to the Governor on October 17, combined to constitute 

the requisite "advice and consent" and the required number of 

votes in favor of McCarthy's nomination, we conclude 

nevertheless that McCarthy did not validly obtain a judgeship.6,7

 

6 Michael J. McCarthy's unilateral act of reciting the oath 

of office before persons qualified to administer oaths (see G. 

L. c. 30, § 11) did not transform the situation and somehow 

create a valid "appointment" where there was none. Where the 

Governor does not make an appointment, no valid commission can 
5

Moreover, the Constitution "discloses the intent [of the 

framers] that the Council shall act in a formal manner upon 

matters coming before it." Scullin v. Cities Serv. Oil Co., 304 

Mass. 75, 78-79 (1939). See Answer of the Justices, 461 Mass. 

1201, 1203-1204 (2012) ("The Massachusetts Constitution requires 

the Council to perform its duties with appropriate formality"). 

The requisite level of formality for confirmation of a 

nomination was missing here. At the meeting on September 26, 

2012, at which the Council voted on McCarthy's first nomination, 

the formal vote -- three in favor, three opposed, and one 

abstention -- was insufficient to confirm his nomination. 

Manning's subsequent attempt to cast a vote, by her letter to

the Governor three weeks later, on October 17, 2012, occurred 

outside the Council's formal meeting and voting process. 

Indeed, there appears to have been no formal action of any kind 

by the Council -- no further meeting, discussion, or vote -- on 

McCarthy's first nomination after the September 26 meeting and 

vote. Although the Governor and Council may promulgate rules of 

procedure to govern the hearing and voting process, see Pineo v. 

Executive Council, 412 Mass. 31, 37 (1992), no such rules have 

been brought to our attention, let alone a rule that would 

authorize a post hoc change in the duly recorded votes to occur 

by a letter to the Governor outside the formal process. In the 

absence of a valid rule authorizing such a procedure, we cannot 

conclude that Manning's purported vote was proper.

The single justice was correct to dismiss the complaint. 

Regardless of his reason, the Governor took no action to 

effectuate a judicial appointment. Neither an action for 

mandamus nor an action seeking declaratory relief will lie 

against the Governor. Milton v. Commonwealth, 416 Mass. 471, 

475 (1993). Further, the court's equitable powers may not be 

used to provide relief that is contrary to statutory or 

constitutional requirements. Haverty v. Commissioner of 

Correction, 440 Mass. 1, 8 (2003), quoting Immigration &

Naturalization Serv. v. Pangilinan, 486 U.S. 875, 883 (1988) 

("Courts of equity can no more disregard statutory and 

constitutional requirements and constitutional provisions than 

 

issue and the purported taking of the oath is an empty gesture. 

Rep. A.G., Pub. Doc. 12, at 109 & n.6 (1984).

7 The Governor and the Secretary have suggested that this 

appeal is moot because the Governor later nominated and (with 

the Council's advice and consent) appointed another individual 

to the judgeship sought by McCarthy. We do not agree that the 

appeal is moot.
6

can courts of law"). Although, in appropriate circumstances,

mandamus and declaratory relief are available against the 

Secretary, this case does not present such circumstances. The 

Secretary cannot be compelled to act where he had no legal duty 

to do so. See G. L. c. 30, § 12 (Secretary is empowered to 

issue commission only to "[a] person appointed to an office by 

the governor"). Where the Governor did not act to appoint 

McCarthy after the Council's proceedings, the Secretary could 

not issue a valid commission to McCarthy. 

Conclusion. The single justice correctly declined to grant 

the requested declaratory relief, relief in the nature of 

mandamus, and equitable relief, and properly dismissed the 

plaintiffs' complaint.

Judgment affirmed.

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.