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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.
