Tuesday, February 22, 2011

Oft-overlooked panel drawing new scrutiny

By Noah Bierman

At one hearing for a Supreme Judicial Court nominee, Charles O. Cipollini concluded a rambling 20-minute speech with a metaphor about celebrating his birthday on Mars, complete with cake. At another, he repeatedly pressed a would-be justice to discuss her view of polygamy. Days later, Cipollini demanded to know why Governor Deval Patrick’s pick for the Massachusetts Parole Board signed his checks Joshua, even as friends called him Josh.
 
Cipollini, 68, said he likes to joke, but the uncomfortable looks and pained laughs from the audience have made for some awkward moments.
 
Welcome to the Governor’s Council, a normally obscure but always colorful elected body that has the power to approve lifetime appointments to judges and must also sign off on forthcoming Parole Board appointments.
 
In recent weeks, a confluence of high-profile nominees and a slew of new councilors has brought the Governor’s Council attention just as the panel developed a fresh sense of feistiness. Its reemergence into public view has reignited a perennial debate over whether the Colonial-era body is an anachronism that too often veers into the bizarre and should be abolished.
 
Cipollini, a retired math teacher from Fall River who writes his speeches in longhand and is prone to tangents, is hardly the only member of the eight-member board who has carved an unusual profile.
 
His colleague Marilyn Petitto Devaney was sentenced to probation three years ago after she faced charges for throwing a curling iron at a store clerk. Another councilor, Kelly A. Timilty of Roslindale, paid an $8,000 fine in 2008 after acknowledging that she had forged the governor’s signature on her campaign literature. And Mary-Ellen Manning of Salem maintains a quirky website that asks visitors to click on a pair of virtual Victorian bloomers to learn why her critics had their “knickers in a twist’’ over her questioning of a gay judicial nominee.
 
The council is a mix of lawyers and others who are each paid $26,025 a year for meeting once a week, often for only a few minutes. There is no law forbidding the lawyers on the council from practicing in front of the judges who come before them for confirmation, though some councilors say they voluntarily avoid that situation.
 
The council has no budget to vet candidates and no staff of its own to help members navigate relevant legal opinions. The Judicial Nominating Commission, which recommends judges to the governor, does not share the dossiers it gathers. The governor’s staff helps with scheduling and records meetings on cassette tapes. Devaney said she plans to ask the rest of the council to chip in for a new tape recorder.
 
She and other members say they welcome more attention for what they do.
 
“I’ve been here 12 years and no one has noticed,’’ said Devaney, who believes she was set up by two police chiefs on the curling-iron assault charge.
 
Devaney said she spent years as a lonely voice, opposing candidates who won nominations only because they are politically connected or because their relatives contribute to campaigns.
 
But now, after several years in which board members routinely rubber-stamped the nominees that came before them, their opposition — and their votes — have become harder to predict.
 
Justice Fernande R.V. Duffly, a respected appeals court judge, won confirmation to the SJC last month in a tight 4-3 vote. Heather Bradley, the wife of a state representative whose family donated more than $100,000 to Democratic candidates and committees, was confirmed as a Plymouth District Court judge this month in a 5-4 vote that required a tie-breaker from Lieutenant Governor Timothy Murray. Joshua Wall was confirmed as Parole Board chairman last week on a 5-3 vote.
 
The council’s Parole Board oversight is under particular scrutiny since the upheaval this winter on that body. Five of seven Parole Board members resigned under pressure after a parolee murdered a Woburn police officer in December.
 
The council promises to remain relevant in the coming weeks, as Patrick is set to fill four Parole Board vacancies and one additional SJC seat, replacing Justice Judith A. Cowin, who has announced plans to retire.
 
“I’ve been on the council for six weeks and it’s been a lot more than I thought it would be,’’ Terrence W. Kennedy, a newly elected councilor, said of the council’s profile.
 
Kennedy has voted to approve all nominees so far, but laments that critics who once complained that the council was a rubber stamp now complain that it interferes too much. “It’s a no-win,’’ he said.
 
Sometimes called the Executive Council, the panel has long been the subject of derision, with occasional calls to abolish it.
 
The council, as it exists today, is a distant relative of a Colonial council established in 1628 as a political check on the Royal Governor. The state’s original 1780 constitution created an unelected council that helped the governor run the state, and the panel became an elected body in 1855. But its powers were greatly curtailed in 1964, five years after eight councilors were imprisoned for corruption and bribery.
 
Former Boston mayor and governor James Michael Curley famously called it a “hock shop,’’ because members demanded favors or cash in return for their votes. Governor Michael Dukakis fought with the council when its members refused for months to schedule hearings for his judicial nominees. At the time, one councilor, Joseph A. Langone III, had served six months in federal prison for assaulting a federal officer. He promised to “bury’’ a judicial nominee who he believed had written the sentencing memo that led to his incarceration, and he claimed during her failed confirmation hearing that she “hates Italians.’’
 
Modern critics of the council, who come from across the ideological spectrum, say the panel flies so far under the radar that voters know little about the people they are electing for this statewide office, even though each member represents more constituents than a US congressman.
 
“It’s antiquated. It’s dangerously low-profile in the sense that I think many people don’t appreciate their responsibility,’’ said Peter Ubertaccio, chairman of the political science department at Stonehill College.
 
Ubertaccio said he believes members often overstep their authority, citing as an example a recent call by Manning to abolish the Parole Board. “I find that to be so utterly lacking in seriousness,’’ he said.
 
State Senator Bryan A. Joyce has filed numerous bills to eliminate the Governor’s Council and give senators the power to approve judges.
 
“They might have served a valuable purpose in 1628,’’ he said. “They don’t in 2011, other than to provide a small group of people with a government sinecure.’’
 
But alternatives may be no more popular. In many states, judges stand for election, collecting donations from lawyers and campaigning on street corners. Other states follow the federal system, confirming judges through the senate.
 
Councilor Thomas T. Merrigan, a former judge, argues that allowing a state senate to confirm judges creates “much more opportunity for political mischief.’’
 
“We don’t appropriate. We don’t legislate. So we don’t have things to horse-trade,’’ he said.
 
The current level of scrutiny of the council could help create a more robust process next time members come up for election, which would improve the institution, Merrigan said.
 
Merrigan and other council members say Cipollini, who has drawn the most attention for his odd behavior, is a kind man who may just be taking a little extra time settling into his public role.
 
Cipollini said nominees are also taking some time getting used to him.
 
“They don’t like this direct questioning,’’ he said. “I spend a lot of time on my research and I take this job very seriously.’’
 
Cipollini had never won political office before he was elected in November, though he did serve as a delegate for Patrick J. Buchanan’s insurgent presidential bid in 1992. In an unusual move, Cipollini ran for council against his own brother, Oliver, in the fall, to double the family’s chances of victory.
 
But he said that both his behavior and some of his comments on the council have been misinterpreted.
 
“These are little asides I used when I was a math teacher,’’ he said. “The kids liked it.’’
 
Noah Bierman can be reached at [email protected].