Executive Order  No. 420: Judicial Nominating Council

WHEREAS, the Constitution of the Commonwealth of Massachusetts, Part One, Article XXIX, guarantees an impartial interpretation of the laws and administration of justice by free, impartial and independent judicial officers;

WHEREAS, under the Constitution and laws the Governor is charged with the responsibility of nominating and appointing, with the advise and consent of the Executive Council, all judicial officers;

WHEREAS, the quality of our system of administering justice is determined largely by the quality of the judicial officers appointed to serve within our judicial system;

WHEREAS, the pre-eminent consideration for the selection of judicial officers ought to be the quality of their intellect, judgment and integrity;

WHEREAS, judicial candidates should be drawn from a cross-section of our community, representing not only geographically diverse parts of the Commonwealth, but reflecting as well a diversity of experience and background; WHEREAS, the, highest quality of judicial officer appointments can best be assured by the use of a non-partisan Judicial Nominating Council composed of outstanding citizens in aid to the discretion reposed in the Governor, drawn from all quarters of the Commonwealth and a cross-section of its divers population;

NOW, THEREFORE, I, Argeo Paul Cellucci, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me as Supreme Executive Magistrate, do hereby revoke Executive Order 355 and amendments thereto, and order as follows:

Section 1. A Judicial Nominating Council ("Council") is hereby established to advise the Governor with respect to appointments of judges, clerk-magistrates and clerks of court.

Section 2. The Council shall consist of an Executive Committee having twenty-five (25) members including a chair, who shall also hold the title of Chair of the Judicial Nominating Council, and four (4) Regional Committees as described below. All members of the Executive Committee and of the Regional Committees shall be appointed by and serve at the pleasure of the Governor. The Governor may appoint one or more vice-chairs of the Council from the membership of the Executive Committee.

Section 3. Each of the four (4) Regional Committees shall have a chair. The chair of each Regional Committee shall also be one of the 25 members of the Executive Committee. the Chair of the Regional Committees shall report directly to the Chair of the Council and the Executive Director of the Council with respect to their duties and the conduct of the affairs of their respective Regional Committees.

Section 4. The Regional Committees shall be constituted as follows:

(a) The Western Regional Committee shall encompass the counties of Berkshire, Franklin, Hampshire and Hampden and shall consist of eleven members. The Governor shall appoint at least one member from each of the four county bar associations represented within this region.

(b) The Central Regional Committee shall encompass Worcester County and shall consist of eleven members. The Governor shall appoint at least one member from the county bar association represented within this region.

(c) The Southeastern Regional Committee shall encompass the counties of Barnstable, Bristol, Dukes, Nantucket and Plymouth and shall consist of eleven members. The Governor shall appoint at least one member from the bar associations of Barnstable, Bristol and Plymouth counties, and shall appoint one member from the bar associations of Dukes or Nantucket counties.

(d) The Eastern Regional Committee shall encompass the counties of Suffolk, Middlesex, Norfolk, and Essex and shall consist of fifteen members. The Governor shall appoint one member from each of the bar associations of Essex, Norfolk and Middlesex counties, and of the Boston Bar Association.

(e) With regard to the county bar association members appointed by the Governor to the regional Committees, the Governor may periodically seek replacement recommendations to ensure active and current bar association involvement in the selection process.

Section 5. The Regional Committees shall solicit, interview, evaluate, and recommend well qualified candidates to the Executive Committee for judicial and clerk-magistrate vacancies occurring in the District, Probate, Juvenile and Housing Courts in their respective regions. Each Regional Committee shall, in this regard, be responsible for conducting reference and background checks of all candidates in recommends.

Section 6. At any time at the request of the Governor or as a result of vacancies being advertised by the Council, each Regional Committee shall develop a slate of well qualified candidates for such vacancies. No candidate's name shall be placed on the slate unless the Committee has satisfied its criteria for ensuring that such candidate is of the highest moral and ethical integrity, and the candidate is well qualified to serve as a judge in the District, Probate, Juvenile and Housing courts or as a clerk-magistrate or clerk of court. No candidate shall be placed on the slate unless a majority of the members of the Committee voting must receive at least 5 votes from the Western, Central or Southeastern Committee, and 7 votes from the Eastern Committee in order to be placed on the slate. Candidates need not reside within the region in order to be considered or included on the slate.

Section 7. At any time at the request of the Governor or within a reasonable period of time after the deadline for submitting applications for an advertised vacancy expires, the Regional Committee shall forward to the Executive Committee a slate consisting of the names and all pertinent information relating to each of the candidates. The Executive Committee shall review the information with respect to the candidates forwarded to it by the Regional Committee, and forward the slate to the Governor, through his Chief Legal Counsel, with appropriate comments or additions as provided in section 8. The Executive Committee may, but need not, conduct further reference checks of any of the candidates. The principal purpose of this review shall be to ensure, over time, a consistent level and standard of quality and an appropriate range of diversity in the recommendations of the Regional Committees, and to identify areas where the Executive Committee can, through the Regional Chairs, assist in the recruitment of well qualified and diverse candidates.

The recommendations of the Regional Committees as forwarded to the Governor by the Executive Committee, shall not be considered to be the recommendations of the Executive Committee or a certification by the Executive Committee of the qualifications of any individual so recommended, except as provided in Section 8.

Once voted onto the slate by a Regional Committee and forwarded to the Governor's Chief Legal Counsel by the Executive Committee, a candidate remains eligible for appointment to any comparable judicial vacancy which may occur in that region during an eighteen (18) month period commencing from the date that the Governor's Chief Legal Counsel receives such slate. The Governor may, in circumstances he deems exceptional, appoint a candidate recommended by one Regional Committee to a comparable position in another region where the candidate has substantial ties through residence or practice.

Section 8. The Executive Committee may not add candidates to the slate forwarded by the Regional Committee without the concurrence of twelve of its members. The Executive Committee may add no more than two well qualified candidates to the slate to be forwarded to the Governor for consideration in filling judicial vacancies occurring in the District, Probate, Juvenile and Housing Courts or in the position of clerk-magistrate or clerk of court. Any such additional candidates must reside or practice in the relevant region and must come from the candidates that the Executive Committee has interviewed pursuant to Section 9, below. The Executive Committee may, upon a vote of thirteen of its members, send a recommended candidate back to the Regional Committee for reconsideration, or forward the name of such candidate on to the Governor with a specific reservation or comment.

If the Governor determines that the slate forwarded to him is inadequate, he shall so advise the Executive Committee and the pertinent Regional Committee, and may request that they engage in a further search for well qualified candidates and submit to him within thirty (30) days a slate with an expanded list of candidates.

Section 9. The Executive Committee shall solicit, interview, evaluate and thereby develop a slate of well qualified candidates for appointment to judicial vacancies in the Land Court, the Superior Court and the Appeals Court at any time at the request of the Governor or as a result of vacancies being advertised by the Council. The Executive Committee shall, in this regard, be responsible for conducting reference and background checks of all candidates it recommends for inclusion on the slate.

A candidate's name shall be placed on a slate of candidates for judicial vacancies in the Land Court, the Superior Court and the Appeals Court only by the concurrence of a majority of Executive Committee members voting, but in any event, no candidate shall be placed on the slate without receiving 10 affirmative votes. No candidate's name shall be placed on the slate until the Executive Committee has satisfied its criteria for insuring that the candidate is of the highest moral and ethical integrity, and that the candidate is well qualified to serve as a judge in the Land Court, the Superior Court and the Appeals Court.

Section 10. At any time at the request of the Governor or within a reasonable period of time after the deadline for submitting applications for an advertised vacancy expires, the Executive Committee shall forward to the Governor, through his Chief Legal Counsel, a slate consisting of the names and all pertinent information relating to each of the candidates. Once voted onto the slate and forwarded to the Governor's Chief Legal Counsel, a candidate remains eligible for appointment to any comparable judicial vacancy that may occur during an eighteen (18) month period commencing from the date that the Governor's Chief Legal Counsel receives such slate.

If the Governor deems the slate forwarded to him to be inadequate, he may request that the Executive Committee engage in a further search for well qualified candidates and forward to him within thirty (30) days a slate with an expanded list of such candidates.

Section 11. There shall be a Special Nominating Committee established for the selection of judges to the Supreme Judicial Court. This Committee shall consist of nine members drawn from throughout the Commonwealth. The Committee shall have an initial life of 2 years, until May 30, 2001, but may be extended by the Governor. If the Committee is not extended, its responsibilities with regard to the Supreme Judicial Court shall revert to the Executive Committee.

The members of the Special Nominating Committee shall be selected by the Governor, and will serve at his pleasure and under the same rules as apply to members of the Regional and Executive Committees as set forth in this Executive Order. The Governor will designate a chair from the Committee membership. The Committee's charge will be that given to the Regional and Executive Committees, with particular focus on the needs of the Supreme Judicial Court and the often special experience, interests, and qualities necessary to the making of a well qualified judicial candidate for the Supreme Judicial Court.

The Committee shall recommend a slate of well qualified candidates to the Governor, through the Executive Committee. The Committee shall adopt procedures for the conduct of its affairs. The Committee shall be responsible for periodically keeping candidates informed of their status in the process. The Committee shall forward only those candidates who receive a majority of the votes cast at a voting meeting, but in any event, no candidate shall be forwarded for consideration by the Governor unless he or she has received four votes from the Committee.

Section 12. The Executive Committee shall meet monthly to conduct its business and more frequently if called to do so by the Chair. The Regional Committees shall meet when called to do so by the Chair of each committee, and as further voted by the members.

Section 13. The Executive Committee shall adopt procedures for the conduct of its affairs. Each of the Regional Committees shall adopt procedures for the conduct of its affairs, which shall be subject to the review and approval of the Chair of the Council. All records and deliberations with respect to persons under consideration as nominees or prospective nominees shall be held in confidence by the Executive and Regional Committees but shall be available to the Governor and the Governor's designee. It is intended that the names of individuals forwarded to the Executive Committee and to the Governor be confidential to the extent possible, and intentional breaches of this important responsibility may be grounds for removal.

It shall be the responsibility of the Chair of the Executive Committee and each Regional Committee, or the chair's designee, to notify all candidates of their status at the time the recommendations are forwarded to the Executive Committee and/or to the Governor's Chief Legal Counsel.

Section 14. In considering persons to submit as nominees to the Governor, the Executive and Regional Committees shall seek men and women of the highest quality who by temperament, ability and integrity will freely, impartially and independently interpret the laws and administer justice. Persons shall be considered for submission as nominees according to law and without regard to race, religion, gender, national origin, sexual orientation or political affiliation.

Section 15. All members of the Executive Committee and of the Regional Committees shall be prohibited from soliciting or receiving campaign contributions on behalf of any candidate for federal, state or local office to the same extent as the law prohibits public employees from soliciting or receiving such contributions. Members shall receive no compensation.

Section 16. No member of the Executive or Regional Committees shall be considered as a nominee until he or she has left the Committee and a period of six months has passed.

Section 17. This Executive Order shall continue in effect until amended, superseded or revoked by subsequent Executive Order.

Given at the Executive Chamber in Boston this 26th day of April in the year two thousand.

Argeo Paul Cellucci, Governor
Commonwealth of Massachusetts

William F. Galvin
Secretary of the Commonwealth