A case study in human nature

Issue July 2013 By Christina P. O’Neill

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 officio.

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 successful nominees.

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 important."

"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 initial appointees."

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 inadequate staffing.

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 Southbridge, concurs.

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," Kennedy says.

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.

It depends

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 they're guilty."

"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 said.

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 procedural rules.

The mood lightened at the end of the formal assembly session, when Caissie was presented with a birthday cake, and collegiality returned.

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 incomplete vetting.

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 established practice.

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 Journal.