Governor's Council raises the bar on appointments
Terrence W. Kennedy recounts an often-circulated aphorism: "The
last day a judge ever has to have humility is the day [he or she]
appears before the Governor's Council."
That's become more relevant since the Governor's Council lost
it's vote tie-breaker with the resignation of Lt. Gov. Timothy P.
Murray. Because there is no constitutional provision in the state
constitution to replace a lieutenant governor who has resigned, the
eight-member council will, for the remaining 18 months of Gov.
Deval L. Patrick's term, be making decisions without the
ninth-vote function provided by the lieutenant governor ex
The members we spoke with are more than willing to rise to the
challenge. They invite the opportunity to discount what some say
are inaccurate perceptions of what the council does, and to
demonstrate that they go the extra mile to vet nominees to state
government posts. Appointees to the bench, or to other government
office, face a steeper challenge in getting a majority vote without
the tie-breaker. The council members say that a highly concentrated
vetting process will ultimately result in a stronger pool of
The Governor's Council has the final word on appointed government
posts -- judges, clerk magistrates, public administrators, and
members of the Parole Board, Appellate Tax Board, Industrial
Accident Board and Industrial Accident Reviewing Board, as well as
justices of the peace and notaries public. It also addresses
pardons and commutations. The council's eight members are elected
every two years in general elections, chosen from specially drawn
council districts across the state, each with equal population
representation. All their nominations and voting meetings are open
to the public.
Another appointing body is the 21-member Judicial Nominating
Commission, established as uncompensated, non-partisan members, who
are appointed by the governor for one-year terms.
Along with the JNC, Governor's Council nominees must pass the
scrutiny and close evaluation of the organized bar's Joint Bar
Committee on Judicial Appointments. The JBC, officially formed in
1961, is comprised of 22 individuals from the Massachusetts Bar
Association, Boston Bar Association, county and affiliated bars.
Along with the JNC, the work of the JBC is highly confidential but
differs from the JNC by evaluating only the final nominees
forwarded to them by the governor's legal office.
The opportunity to make a case
Lawrence M. Friedman, professor of law at New England Law
Boston, says that while there has been discussion in the press over
the years to do away with the Governor's Council, that body has
been part of the Massachusetts Constitution since 1780. While a
September 2012 article in The Boston Globe portrayed it as
a fractious group, the article noted that even its critics sought
seats on the council. "Over time, the council's responsibility has
been diminished but that doesn't mean they have nothing to do,"
Friedman said. "They are an important democratic check on the
governor's ability to make decisions. … They now have to commit to,
in essence, to figure out for themselves rather than let the
lieutenant governor break a tie. It puts more pressure on them both
to make a case for a particular nominee but also to compromise.
This is an opportunity for them to show that what they do is
"The Governor's Council has served the citizenry extremely well by
acting as an invaluable voice for the public. Our founders
recognized the great importance of having the council as a check on
executive authority," said Martin W. Healy, Massachusetts Bar
Association chief legal counsel. "They are the only publicly
elected body involved in approving lifetime judicial appointees."
Healy added, "Other states recognize this importance by involving
similarly constituted bodies to reevaluate appointees after a
certain length of service in determining whether or not to retain
The Governor's Council's purpose is "to be the last step in
becoming a judge," said District 2 member Robert L. Jubinville.
Council members invite the ability to refute the stereotype that it
serves as a "rubber stamp" for appointees and that its main
function is to serve as legal counsel to the governor. As
Jubinville, a criminal defense attorney practicing in Milton puts
it, the name of the group is council, not
counsel, a distinction that should be part of public civic
awareness, and that the independence of the council should be
understood -- and demanded by the public -- as a civic right.
Jubinville also thinks that the Governors Council should
advocate for the court system as well as for qualified nominees,
and says he thinks that the court's two percent allocation of the
state budget is "appalling." While he admits to a bit of
self-interest, as an attorney who goes to court every day, he says
the public is being shortchanged as well by the problems of
Not in it for the money
District 6 member Kennedy, a litigation attorney, says a
perception that the council meets once a week for 15 minutes to
expedite appointments is "totally inaccurate." The job, which pays
members $26,025 a year plus benefits, takes between 20 and 25 hours
of hearings and research a week, an estimate with which District 7
colleague Jennie L. Caissie, a private-practice attorney in
Kennedy says that he can make far more in private practice, but
that he was inspired to run for the post by his predecessor,
Michael J. Callahan, a respected colleague who succumbed to cancer
during the very hour that Kennedy stood on the statehouse floor
waiting to be sworn in.
The public review and hearing process, which takes an average of
two-and-a-half hours, but can run anywhere from a half-hour to five
or six hours, is supplemented by hours of reading, research and
phone calls, both to and from. "If they're not a good nominee, you
get a lot of calls," Kennedy says, with a hint of a smile. However,
he adds, council members should -- as should the press -- consider
the source. If most of the negative callers are disgruntled
litigants or, in the case of attorneys, ex-clients, the input could
be considered biased.
Amidst all this, members take the vetting process seriously. "If
you call it wrong, you can mess up a lot of people down the line,"
Dig a little deeper
That's why the vetting process of the Governor's Council digs
deeper, relying not only on data presented to it but to
institutional memory and to contacts.
Judicial nominees for lower courts must follow the law rather than
interpret it. But for judicial nominees to higher posts, such as
the Supreme Judicial Court or the Court of Appeals, the criteria
include not only experience on a resume, but demeanor. While past
judicial decisions can provide a concrete record of a judge's
reasoning, upon review of those decisions, the question must be
asked - particularly in the case of a nominee who is reputed to be
an "activist" - does the judge apply the rules or try to make the
rules? Has the nominee overturned lower court decisions? Is that a
pattern? If so, what kind of a pattern?
The same rules of law should apply to the vetting process as apply
in the courtroom. If the vetting standards are waived to allow an
activist judge whose views are favorable to the currently-incumbent
nominating panel to rise to the bench, the standards are also
compromised in such a way as to allow the appointment of the next
activist judge whose views are not necessarily favorable to either
the nominators or to the public.
The Massachusetts Lawyers Journal sat in on a
June 19 hearing to admit Peter Smola, a New Bedford probate
attorney, to an associate justice seat on the Bristol County
Probate Court. A second-generation attorney who put himself through
law school, Smola brought along witnesses who served as compelling
advocates for him. One was Maura Tierney, a private practice
domestic law attorney from New Bedford, who stated that she has
worked on cases with him - and then added, "I should say,
against him," as the opposing attorney -- and noted his
collaborative nature. She told the council that a divorce case can
easily take on the personality of the lawyer. "When the opposing
counsel is Peter Smola, I breathe a sigh of relief, [knowing] that
he will have his client's interest above his own. … He never acts
in a manner that inflames an already-charged situation."
The council drilled Smola with questions designed to reveal
inconsistencies in his responses, a particularly important
component of family and probate law, where the individual family
situation does not always fit strict letters of law. Jubinville
asked, from several different semantic angles, whether "equal"
should apply to time spent by parents on the contentious topic of
joint custody. Smola replied that shared custody does not imply
that parents contribute equal time; rather, comparable resources
should be considered.
Through the several iterations of the query, Smola continued to
reply in a neutral, non-evasive but engaged manner. The gist of his
responses was: It depends upon the individual circumstances of the
case. Further questioning by others went along the same vein, from
the serious to the amusing, with District 8 member Michael J.
Albano asking him "What possessed you to sit on the Zoning Board of
Appeals?" The question, implying among other things that a ZBA post
is a thankless job, drew smiles from several in the room. Smola's
response indicated that he took the demands in stride.
As the questioning wound down, a couple of the members gave Smola
their impressions of him and said his demeanor worked strongly in
his favor. "No one should be afraid to appear before you,"
commented District 3 member Marilyn M. Petitto Devaney, "unless
"Sometimes, we want it to get heated," said Caissie, concerning
the reviewing process. A nominee with a stellar resume but with a
demeanor that doesn't fit the climate in which they will work would
not best serve the commonwealth in a judicial capacity, she
Advise and dissent
Heated, it can get. In the June 19 formal assembly meeting that
preceded Smola's hearing, with Patrick present, Devaney voiced her
objections to schedule change of a hearing, which she described as
last-minute, for one of the nominees. She objected that she had not
had a chance to vote on it because she had briefly stepped out of
the room when other councilors were discussing the matter. The
change resulted in the council having to approve and then vote on
an applicant on the same day. Stressing the need to follow
procedure - particularly because the date of the hearing had
already been published as a legal notice before the change was made
- she pressed on, expressing concerns about transparency and about
the voting process. District 1 Councilor Oliver Cipollini Jr. noted
that in the future, effort would be made to be more conscious of
scheduling. Patrick requested that the council reach agreement on
The mood lightened at the end of the formal assembly session, when
Caissie was presented with a birthday cake, and collegiality
Kennedy later remarked, "When I'm evaluating someone for a
lifetime appointment for $160,000 [annually], they can wait a
couple of weeks," because of the potential downstream effects of an
Caissie, like Devaney, is concerned with improving the integrity
of the process. She made a motion in December 2011 for the council
to start administering the truth-telling oath at hearings. She says
some members administer it when they chair meetings; others don't.
She is currently working with the Legislature to make it
She gives a searing example of the kind of downstream events from
procedural lapses that make the Governor's Council take their jobs
seriously. Shortly before she took the council post in January
2011, parolee Dominic Cinelli, who had been serving three
concurrent life sentences, killed Woburn Police Officer John
MacGuire on Dec. 26, 2010, in a Kohl's department store during an
attempted robbery. According to records of the state Executive
Office of Public Safety and Security, Cinelli, who was also killed
in the confrontation, was far from a model prisoner and should
never have gone free. Public safety records attribute Cinelli's
parole in part to "a lack of attention to detail" on the part of
the two individuals preparing the hearing calendar, and in part to
a software coding error attributed to the automated software used
in preparing the hearing calendar, which cited the wrong underlying
crime. The two staffers, along with their supervisor, were
subsequently dismissed from the Parole Board. The board has also
adopted a risk-based assessment tool in 2009, a year after
Cinelli's 2008 parole, that if in place at the time would have
contra-indicated his suitability for parole.
Caissie observes the change in the council's voting patterns since
her arrival in January 2011. To that point, there hadn't been a
single tie vote in five years, which she finds "incredible." Since
then, there have been approximately 10 tie votes. Now that the
council will not be able to rely on a tie-breaker, "the
accountability volume has been turned up," she says. If the
Governor's Council must double its efforts to vet appointees to
secure a clear majority, the governor, the JNC and the JBC will
have to as well. She pauses, and says with a smile, "Maybe that's
why I got a birthday cake."
Christina P. O'Neill is editor of custom publications for The
Warren Group, publisher of Massachusetts Lawyers