It looks like Governor Deval Patrick will have to stay put in the State House on most Wednesday afternoons if he wants his judges to win approval.
The Supreme Judicial Court released an advisory opinion Tuesday that essentially forces Patrick to be on standby while his judicial nominees are being evaluated by the Governor’s Council, an obscure Colonial-era body that has the power to approve or reject Patrick’s judicial nominees. The council meets on Wednesdays at noon.
Patrick does not normally attend the council’s meetings, which are chaired by Lieutenant Governor Timothy P. Murray.
But in the event of a tie, Murray can cast a vote - though only if Patrick is there to take the gavel.
The Patrick administration had been at odds with the council over whether the governor needed to be physically present to allow Murray to cast a vote. Patrick had argued there was no need, as long as he remained alive, alert, and within the Commonwealth’s borders; the council argued that Patrick actually needed to be in the council chambers.
The SJC agreed with the council, ruling that the plain language of the state constitution requires his presence.
“We interpret the ‘absence’ referred to in [the state constitution] to mean the governor’s absence from the council chamber while the council is convened, and not absence from the Commonwealth,’’ the SJC wrote. “If ‘absence’ were to mean ‘absence from the Commonwealth,’ the drafters of the Constitution would have spelled out this requirement.’’
The SJC opinion will not force any sitting judges off the bench. Patrick has been showing up in person to break ties, waiting to hear what the SJC would say.
Normally, this question would be merely academic. For decades, the council has mostly served as a rubber stamp, approving the vast majority of nominations with little dissent.
But over the past year, it has grown increasingly feisty.
The SJC opinion noted that there were seven tie votes in 2011, six of which were resolved by Murray casting a tie-breaker.
Patrick’s chief legal counsel, Mark Reilly, said in a statement that he appreciated the SJC’s willingness to settle the question.
“We respect the court’s interpretation of the constitutional provisions regarding the lieutenant governor’s authority to vote as a member of the Governor’s Council,’’ he said. “The guidance is consistent with the approach we have taken in these circumstances. As has been the practice during the past year, the governor will preside over formal assemblies as needed in order for the lieutenant governor to vote as a member of the council.’’