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Governor’s Council future in jeopardy

Effort aims to eliminate panel

By Noah Bierman
Globe Staff / May 8, 2011

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After the Governor’s Council completed its latest judicial confirmation last week, approving Justice Barbara A. Lenk’s ascension to the high court, one member said he was so concerned about the panel’s reputation that he made an unusual speech about the need for better decorum.

Councilor Thomas T. Merrigan warned that the body is losing credibility and “indeed sowing the seeds of our demise’’ with its antics, emboldening lawmakers who want to abolish the council. This followed a series of particularly fiery confirmation hearings, culminating with Lenk’s.

By week’s end, the council seemed to be one step closer to that demise, after Senate President Therese Murray endorsed a bill that would eliminate the elected eight-member panel, a centuries-old body responsible for confirming judges and signing off on state expenditures.

The governor has said he will stay out of this skirmish and House Speaker Robert A. DeLeo has yet to take a position, according to his spokesman, but the future of the council could come to a legislative vote this year before the Constitutional Convention, a joint session of the House and Senate.

The convention, which Murray chairs, meets for the first time this Wednesday but is likely to delay debate on any constitutional amendments until later this year. Ultimately, Murray plans to formally initiate a full debate on the council’s role, which will probably occur in the fall, according to Senator Brian A. Joyce, a Milton Democrat who has led the effort to abolish the council.

The council is a generally obscure body that periodically gains attention, and is often the target of criticism for bickering and sometimes odd behavior, including grilling another nominee for the state’s highest court for her position on polygamy. In recent months, it has again drawn a spotlight as it confirmed three Supreme Judicial Court nominations and several members of the state Parole Board.

Critics say the council’s meetings often erupt into a sideshow of irrelevant questioning and strange antics, as its members have no staff to help them systematically vet judicial candidates. Defenders say the council is the best way to ensure that lifetime appointees are accountable to the public before they are anointed.

Joyce said Senate Democrats discussed the issue in a closed caucus on Thursday, and that there is enough support in the chamber, from both parties, to abolish the council, though senators have not yet decided what would replace it.

Both Joyce and Murray say they do not want the Senate to take over the responsibility, in large part because they do not want others to accuse them of a power grab.

The council is enshrined in the state constitution, so abolishing it is a lengthy process that requires two majority votes at consecutive constitutional conventions and then a public ballot question. Joyce believes the earliest he can get the issue on the ballot is 2014.

During his speech on Wednesday, Merrigan did not exempt himself from the critique. “It is my intention to clean my side of the street,’’ he said.

Merrigan was referring to his own comments during a previous meeting, when he repeatedly referred to fellow councilor Marilyn M. Petitto Devaney as “probationer Devaney.’’ It was a reference to a 2007 case in which Devaney was placed on probation after being charged with assault and battery for throwing a curling iron at a beauty salon employee. The charges were later dropped after Devaney apologized to the clerk and agreed to serve nine months of probation.

But even Wednesday’s attempt to mend fences prompted an outburst from Devaney.

Just as Merrigan was preparing to apologize, Devaney interrupted: “That is out of order.’’

The council is formally chaired by Lieutenant Governor Timothy P. Murray, who votes in case of a tie. Governor Deval Patrick said recently he was not taking a position on the council’s role. “I have to work with this Governor’s Council, so don’t draw me in to a controversy about the worthiness of the Governor’s Council,’’ Patrick said during a monthly radio show.

Joyce said he is looking at several ways to eliminate the council without putting judicial confirmations in the Senate’s hands. He said the state could empower a panel that includes the chief justice of the Supreme Judicial Court, the attorney general, and the head of the state bar association. As an additional layer of scrutiny, he would write a new law requiring governors to rely on a nominating commission whose members would be appointed from several branches of government. Governors traditionally rely on a nominating commission to help them vet potential judges, but there is no law requiring them to do so.

But ultimately, he said, eliminating the council would save $500,000 a year, and remove an outdated and unnecessary layer of bureaucracy that does not exist in 48 other states or at the federal level.

Though Joyce said he believes both House and Senate members would agree once his proposal has been worked out, it is far from certain. The legislative Judiciary Committee recently rejected Joyce’s proposal, and the leading House member on the committee said no one has stepped up to lead the initiative in his chamber. Representative Eugene L. O’Flaherty, a Chelsea Democrat and House chairman of the committee, said Joyce’s proposal would give too much power in the selection process to unelected officials.

“That concerns me because that’s an issue of accountability,’’ O’Flaherty said.

Christopher A. Iannella, the longest-serving member of the council with 24 years in office, said he is not worried. “I hear about it every year for the last 10 years,’’ he said.

“If somebody’s acting out of control, the solution’s easy,’’ Iannella said. “Kick he or she out of office.’’

Noah Bierman can be reached at nbierman@globe.com.