Merrigan reflects on tenure in Gov.’s Council

So what, exactly, is that “governor’s councilor” thing listed as the top state office on your election ballot on Nov. 6?

This Election Day, with a familiar Franklin County name — Thomas T. Merrigan — stepping down from the post and two Hampden County men seeking to replace him, there may be a temptation to skip voting for the office altogether.

But Merrigan, a former district court judge in Orange and Greenfield and a practicing attorney in Greenfield, says the council serves an important purpose — despite frequent attempts to abolish it or subvert a role that dates back to colonial times.

Merrigan, who’s served on the eight-member council since 2007, took heat during his tenure from both Boston newspapers for positions he took in the main role set out for councilors: giving advice and consent to governor’s judicial appointments.

That role — along with approval of gubernatorial appointments of administrative judges to serve on the state Industrial Accident Board, Appellate Tax Board and Parole Board, as well as justices of the peace and notaries — is all that remains of a post that originated in 1628 as a check and balance on the authority of the English king in colonial times. The royal council, which limited the authority of the monarch, was continued in the 1780 Massachusetts constitution to have powers over a wide range of actions affecting the commonwealth.

That changed in 1959, when corruption and bribery charges resulted in five councilors being forced to resign and legislators limiting the council’s authority.

Today, approving judicial appointments represents the bulk of what councilors do at weekly Wednesday meetings for their annual salary of $26,000.

“Also if the governor wants to recommend parole or pardons, that goes before the council. But in my six years, I never did one,” says the 62-year-old Merrigan, who is stepping down after this term to better focus on his busy law practice.

Voting on judicial nominations also accounts for the bulk of controversies councilors find themselves embroiled in — controversies that Merrigan says are caused because members are elected to their posts with different personal agendas, without set guidelines for what to consider when advising the governor.

“The council members are all elected and entitled to their own philosophies,” says Merrigan. “They’re there to provide advice and consent, and the governing principles are there by inference, to some extent. The governor comes into this presumptively entitled to his nominee. We’re at sort of a starting point of deferring to the governor’s constitutional prerogative.

“But then that’s only the starting point.”

As a former judge — and the only current councilor who has served on the bench — Merrigan said he’s particularly keen on seeing judicial vacancies filled across western Massachusetts, and he believes those positions should be filled by qualified candidates from the county in question.

“I want to make sure western Mass. is adequately before the eye of the governor in terms of having our needs met for judicial appointments,” Merrigan said.

“My philosophy was to advocate on behalf of our needs, knowing that those needs translate into justice for the community. If we don’t have enough probate court judges, families suffer. If we don’t have enough juvenile court judges, juvenile needs are not met. If we don’t have enough district court judges, people can’t be well served.”

Although the situation has improved, Merrigan said, seven district court vacancies still remain in western Massachusetts, including one in Orange. There are 26 judicial vacancies across the state.

The governor appoints judges based on lengthy applications by the candidates, with recommendations from a 21-member judicial nominating commission, a merit selection committee voluntarily established by Gov. Michael Dukakis to provide transparency in what had been a completely non-transparent political process. The governor’s choice, or choices, go through investigations by the governor’s staff and the Department of Public Safety as well as review by a bar committee with representatives from across the state, to ascertain that the governor’s pick is qualified.

With that kind of input, Merrigan said, the process is an improvement over the pre-Dukakis days when “There was no rhyme or reason how anybody got to be a judge,” and he believes it’s also a more sensible process than electing judges, as 39 of the 50 states do at least in part.

“Some people say, ‘You rubber-stamp the governor’s appointments,” said Merrigan, who said he’s tried to have a positive relationship with Gov. Deval Patrick to “maintain a credible relationship … to be effective in our behalf.”

Merrigan has balked at having Hampden County candidates appointed for Berkshire County, he said, arguing that the implication is that there aren’t any qualified candidates in the westernmost county, and that qualified local candidates have a better local familiarity with demographics, characteristics and social services in the area.

“Knowing what the social service, the mental health and the substance abuse networks are, what the correction services are and what the law enforcement agencies are capable of doing gives you better synchronicity of the justice system,” Merrigan said.

“The governor’s office really has been responsive to that concern, so it hasn’t been a problem. It doesn’t mean if they sent somebody from Boston to Franklin County — which was talked about at one point and I said, ‘Forget it!’ — doesn’t mean he or she won’t do a good job. But it implied we didn’t have quality people here.”

When the governor’s office did an analysis a couple of years ago that found that 25 percent of the judges appointed statewide were from western Massachusetts, about twice the relative population of the region, the former judge felt satisfied that his goals had been met.

Merrigan figures that higher-profile judicial vacancies being filled raises the bar for councilors to oversee the appointments. “The higher in the system you go, in my point of view, the less prerogative he gets. If it’s the chief justice of the Supreme Judicial Court, who’s responsible for running the entire judicial branch, my obligation is greater.”

Some councilors come to the panel with a political agenda, Merrigan says, and appear to feast on getting media attention from critics like Boston Herald and Fox News critic Howie Carr, who has focused attention on the council and has even invited councilors to appear on his show after stormy meetings.

The “dust-ups,” as he calls them, that have arisen over some nominations, led Merrigan to warn his colleagues that they were “sowing the seeds of our demise” with their antics.

“The different counselors have different points of view,” Merrigan said. “Some, I think, get really off the path looking at things. Some do it because they have their own eccentricities, some do it because they’re driven by the desire for media attention.”

But he said some of the “head-butting” that he’s done has been with councilors like Marilyn Petito Devaney of Watertown, who objects vociferously to his advocacy for western Massachusetts.

Last year, Merrigan also took heat for his opposition to the first Asian-American woman being named to the Supreme Judicial Court because of her record as an appeals judge who, he said, had been “micro-dissecting the record to come up with a different conclusion” than the trial judge and was “substituting her judgment for those of the trial court judges.”

Ferdnande R.V. Duffly, was ultimately appointed in a 4-3 decision.

Last year, two legislators proposed amending the state constitution to abolish the council, although both proposals failed, as others have in the past — an outcome that Merrigan argues better serves the state than leaving judicial positions and decisions entirely subject to voters.

Merrigan’s own top choice for his successor, Kevin Sullivan of Westfield, lost the Democratic primary despite also getting endorsements from a litany of elected officials in Franklin and Hampshire County. But he said that he believes Michael Albano, a former Springfield mayor who won the Democratic nomination, will do a good job in serving the region’s needs.

“I think my achievement has been to bring merit to the way in which we say who should get on the bench, as an effective voice for western Massachusetts and to be a good voice against anyone who wants to eliminate the council.e_SDRq

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