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SJC

- 11625

MICHAEL J. McCARTHY & anoth er 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 record s its advice and

consent to the no mination. The plaintiffs alle ged 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 t his 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 A ssociate J ustice in the S outhern 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. T hree
council l ors voted in favor of the nomination, three council l ors voted against the nomination, and one council l or, 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 . Th e Council considered this second nomination at its meeting on February 1 3, 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 commissi oners authorized to administer oaths and purported to take the oath of office as an

A ssociate J ustice 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

c onfirmation.

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, subj ect 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 conse nt 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 Co uncil, 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, e ven 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 ord er to effectuate the appointment. See Juggins v. Executive Council , 257 Mass. 386,

5 Specifically, P art 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

o ffice 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,
informe d 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 nomina te 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 Opini on 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 Mannin g'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 di scussion , as the plaintiffs argue, that the votes of the counci l l ors 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 person s 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 n ot make an appointment, no valid commission can5

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 C ouncil 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 G overnor 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 Se ptember 26 meeting a n d vote. Although the Governor and Council may promulgate rules of procedure to govern the hearing and voting process, see Pineo v. Executive Council , 412 M ass. 31, 37 ( 1992), no such rules have been brought to our attention, let alone a rule that would authorize a post hoc chang e in the duly recorded votes to o c cur by a letter to the Governor ou t side the formal process . I n the

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

conclude that Manning's purported vote was proper.

T he single justice was correct to dismiss the complaint. Regardless of his reason, the Governor took no action to effectuate a judicial appointment. N either an action for mandamus nor an action seeking declaratory relief will lie against the Go vernor. 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) ("C ourts 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 10 9 & n.6 (1984).

7 The Governor and the Secretary have suggested that this appeal i s moot because the Governor later nominated and (with

the Council's advice and consent ) appointed another individual

to the judgeship sought by McCarthy. W e 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 singl e 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.