Governor’s Council grills local judicial nominees

  • M.J. TIDWELL/FOR THE GAZETTE M.J. TIDWELL/FOR THE GAZETTE

  • Retired Massachusetts Superior Court Judge Peter Velis of Westfield testifies before the Governor’s Council at the Statehouse in Boston, Wednesday, in support of Kevin V. Maltby, who has been nominated by Gov. Charlie Baker to assume the role of associate justice of the Northampton District Court. M.J. TIDWELL/FOR THE GAZETTE

  • Recently retired Hampshire Superior Court Judge Mary-Lou Rup testifies before the Governor’s Council at the Statehouse in Boston, Wednesday, in support of Southampton lawyer Frank Flannery, left, who has been nominated by Gov. Charlie Baker to serve in Rup’s former position on the Massachusetts Superior Court. M.J. TIDWELL/FOR THE GAZETTE

  • M.J. TIDWELL/FOR THE GAZETTE M.J. TIDWELL/FOR THE GAZETTE

For the Gazette
Published: 8/1/2018 11:09:02 PM

BOSTON — The Governor’s Council’s hearings for two judicial nominees Wednesday were a microcosm of pressing issues facing the state, from the opioid crisis to field sobriety tests to public outcry directed at judges who make unpopular decisions.

Two western Massachusetts lawyers, who at different times were former assistant Northwestern district attorneys, have been nominated by Gov. Charlie Baker for judicial roles.

Springfield lawyer Kevin V. Maltby has been nominated for associate justice of the Northampton District Court, and Francis “Frank” E. Flannery, who practices in Southampton, has been nominated to serve on the Massachusetts Superior Court.

In back-to-back hearings that lasted nearly six hours Wednesday, they each went before the eight-member Governor’s Council, which is tasked with reviewing and accepting judicial nominations from the governor.

The probing questions asked by the council showed a snapshot of the complexities of the law and the power and responsibility of being a judge on big issues, particularly given the very recent and still-raw fatal car accident last weekend in Cotuit. The crash killed a new father and resulted in a rare apology from the Cape and Islands district attorney after it was revealed the driver who caused the crash was already on probation but had just been released without bail on a drunken-driving charge.

During the hearings, the nominees were queried on their resumes but also faced with hypothetical ruling situations and questions about their beliefs.

Members of the council also probed the nominees on their feelings about having a review of judges after a set number of years, a practice used in some other states.

“You have the power to take away someone’s liberty. That is an awesome power,” said District 5 Governor’s Councilor Eileen Duff. “You also have the power to change the trajectory of someone’s life.”

‘Honest’ Maltby

When asked what one adjective would best describe Maltby, his legal assistant of 12 years, Marianne Znoj, said, “honest.”

Maltby is a partner at the law firm Bacon Wilson, P.C., in Springfield, where he has practiced a variety of civil litigation, as well as criminal defense, since 2006. He serves on the Supreme Judicial Court’s Standing Committee on Professionalism and is a former president of the Hampden County Bar Association.

An alum of UMass Amherst and Suffolk University Law School, Maltby is also an adjunct professor in legal studies at Bay Path University.

Retired Massachusetts Superior Court Judge Peter Velis of Westfield testified in support of Maltby.

“I can tell you every bit of his personality, both as a lawyer and a person, is the same as the first day I met him,” Velis said. “And when I first met him, I thought ‘this is a man who should someday wear a robe.

“When you recognize the humanity of your fellow human beings, you elevate yourself,” Velis said. “Strictly the law, facts in front of him and seeing the humanity in everyone, that’s the kind of man he is.”

The largest concern raised by the council was around Maltby’s age. At 43, some wondered whether he is truly ready to join the bench, a position he could hold for nearly 30 years, as District 2 Governor’s Councilor Robert Jubinville noted.

Duff raised concerns about burnout and the backlash judge’s families can sometimes face in the social media era.

“To know that Kevin Maltby could be on the bench for 28 years, I say amen to that,” Velis said.

Springfield attorney Joseph Bernard said he has known Maltby as a friend, as a colleague and as an adversary.

“Everyone on the trial bar in Massachusetts knows him as a great lawyer and a great man,” Bernard said. “People aren’t always both.”

Jubinville said that it’s very important to him that a judge have a strong sense of compassion and common sense.

“I’m humbled and honored by the Governor’s nomination,” Maltby said in his opening statement to the council. “I learned a strong work ethic from my father and learned from my mother’s compassion and belief in ‘leaving it better than you found it.’”

Maltby said he applied for the judicial position, in part, because he is drawn to public service. His definition of justice, he said, is that “each person who comes before you is fairly and fully heard.”

Jubinville grilled Maltby for over an hour in a volley of back-and-forth questions on everything from “judge-shopping” to whether a judge should take into consideration how someone dresses when they appear in court to the accuracy and usefulness of field sobriety tests.

Maltby referenced meaningful cases he has come across in his career and consistently reiterated his belief that there are a number of factors that are relevant to each case and each decision, that everything must be heard and considered holistically in order for justice to be served.

Maltby also answered that he would incarcerate transgender people in the gender prison they identify with, not the gender listed on their birth certificate.

“You have the right qualities, the qualities I look for: compassion, integrity, common sense, and character,” said District 4 Governor’s Councilor Christopher Iannella. “I look forward to supporting you whenever the vote comes up.”

‘Unflappable’ Flannery

Flannery, who currently practices at the Law Office of Parker & O’Grady, went before the Governor’s Council Wednesday afternoon for his nomination as associate justice to the state’s Superior Court.

The Massachusetts Superior Court has 82 justices who sit in 20 courthouses in each of the state’s 14 counties. The Superior Court has exclusive original jurisdiction over first-degree murder cases and original jurisdiction of all other crimes.

In his nomination of Flannery, Baker cited the more than two decades of experience Flannery brings as a former Hampden County prosecutor and as the chief of Elders and Persons with Disabilities unit and assistant district attorney at the Northwestern district attorney’s office.

Attorney Jennifer Fitzgerald, who served as Flannery’s co-assistant at the Northwestern district attorney’s office, said he “listens to everybody, is fair to everybody and offers sound advice in a comforting, witty and humorous way.”

“Frank handled the most serious cases we saw at the DA’s office, including hundreds of drug cases that had to be re-litigated after a state chemist falsified evidence,” Fitzgerald said. “I consider Frank to be one of the finest colleagues I’ve had the opportunity to work with.”

Christy Geffin, the program coordinator for the Elders and Persons With Disabilities Unit described Flannery as “patient, level-headed, hardworking, and kind.”

Recently retired Hampshire Superior Court Judge Mary-Lou Rup also testified on Flannery’s behalf. She said Flannery has appeared before her many times and she believes he would be the best person to take her place on the bench.

“He has a lot of experiences in the Superior Court and the cases he has worked on in the SJC have been some of the most serious cases that come before us, such as murder,” Rup said. “There is consistently extraordinary preparation put into his cases and he is very poised, very calm and has a very clear grasp of the law.”

Both Geffin and Rup described Flannery as “unflappable.”

“When I heard that he had been nominated for my seat, it just made me beam,” Rup said.

Attorney Joseph Franco said Flannery possesses common sense and is fair and reasonable to work with on complicated criminal cases.

“I’m going to ask everyone here to vote for Frank because in a year, you’ll be very happy you did,” Franco said. “In 20 years, you’ll look back at a storied career on the bench.”

Jubinville ran Flannery through the gamut, just as he did Maltby, from whether juries can make wrong decisions to the acceptability of fines for late court appearances to incarceration for people addicted to opioids who fail a drug test.

“You pick judges,” Flannery said to the council. “If you pick me, every day I have to make huge decisions that affect people’s lives. That is a huge responsibility for me, but even bigger for you. What you do is enormous, absolutely enormous.”

The council plied Flannery with a variety of hypothetical situations, listening to how he would respond and rule in each. District 7 Governor’s Councilor Jennie Caissie pressed him on issues such as showing sensitivity to victims, ruling around the limitations of technology and his stance on the Second Amendment.

“We learn how to be parents or how not to be parents from our own parents,” Flannery said. “The same goes for judges.”

District 1 Councilor Joseph Ferreira asked Flannery about a case where he had stopped a man from being deported on 20-year-old gambling charges, a case Flannery said was meaningful for him.

“It was monumental,” Geffin said from her seat behind Flannery.

District 8 Governor’s Councilor Mary Hurley, whose district encompasses Northampton, strongly supported the nominations of both Maltby and Flannery and asked each of them only a last joking question to close out the hearings.

A judge for some 20 years herself, Hurley praised their demeanor, civility and respect.

Of Maltby, Hurley said he had appeared before her in the past and she respected his honesty, integrity and not just his ability as an attorney, but his humanity as well.

“We’re dealing with human beings and their frailties,” Hurley said. “We need judges who understand that.”

Both Maltby and Flannery declined to comment on their nominations and no one spoke in opposition to either nominee.

“The thing we can’t quantify here, is the humanity of the nominee before us,” said Councilor Duff. “It’s our responsibility to make sure you’re not just a great lawyer, but that you have a depth of humanity.”

The Governor’s Council will meet next in two weeks and expects to vote on both nominees at its next meeting, scheduled for Aug. 15.




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