Targeting a Judicial Nominee, LGBT Voters or None of the Above?…
In an email to supporters last week, Governor’s Councilor Michael Albano appeared to take aim at one judicial nominee that had represented the opposing side in a legal case to which Albano was a party. The Appeals Court nominee, Peter Sacks, currently the State Solicitor under the Attorney General, represented the commonwealth in a Supreme Judicial Court case involving same-sex marriage, which was not then legal.
“This should be a very interesting hearing….at least from the point of view of Councillor [sic] Albano,” the email teased. The hearing is Wednesday at 10:30 a.m.
Whether Albano, now a candidate for Hampden sheriff, intended to use his current office to make an issue of Sacks’s work on this procedural matter or merely wanted to gin up enthusiasm, there appears to be no threat to the nomination now. However, it does offer a window into the political tactics Albano uses, particularly when aiming at a particular group, in this case the LGBT community.
In his note to supporters, Albano identifies himself as the lead plaintiff in a 2002 case that attempted to derail a citizen initiative to amend the Massachusetts constitution and prohibit same-sex marriage. The Attorney General at the time, Thomas Reilly, had certified the question as procedurally valid and Albano and others had challenged that finding. Sacks represented the Attorney General.
When sent on August 10, the email’s juxtaposition of Albano vs Sacks and the candidate’s own reputation for showmanship prompted some within the local legal community to wonder if Albano would stomp on Sack’s nomination in an effort to appeal to LGBT voters.
But Attorney General Maura Healey, who is also the nation’s first openly LGBT elected AG, was unequivocal in her support for Sacks.
“Peter is a smart, dedicated public servant and would be a terrific addition to the Appeals Court,” Healey said in a statement to WMassP&I. “I have complete confidence that the Governor’s Council will offer Peter a fair and impartial hearing as they would for any nominee.”
In the case involving Albano and Sacks, the substantive legal question on establishing marriage equality was not at issue. A unanimous SJC sided with the Attorney General. The court has had no compunction about overturning the attorney general, but often favors allowing citizen-initiatives to proceed.
Reached for comment, Albano said he would vote for Sacks.
What then, was Albano’s email about? The ex-mayor of Springfield has some residual support within the LGBT community, partly because of his early support for equal rights. But in his email, Albano overstated the significance of his case.
“In 2001, in the case Michael Albano & Others vs. Attorney General the legal process of achieving marriage equality began in Massachusetts,” the email started, adding, “And while the Court ruled against the Plaintiffs in this case, the conversation for equal rights began eventually leading to the landmark” 2003 Goodridge case.
However, the path to marriage equality in Massachusetts did not begin with Albano’s case—far from it. A spokesperson with the GLBTQ Advocates & Defenders (GLAD) confirmed that Goodridge was filed in April of 2001. The case that bears Albano’s name—he was the first alphabetically among eight plaintiffs—began its judicial journey in October 2001. At that time, Albano was in the midst of his only contested reelection bid while federal investigators were circling 36 Court Street.
But there were other factual errors as well. Albano’s email stated that Mary Bonauto, the lawyer who argued marriage equality cases before the US Supreme Court, also argued his. Court records indicate the attorney was Jennifer Levi, a colleague of Bonauto’s. Levi also Goodridge in the lower courts, but Bonauto argued Goodridge before the SJC.
What legal impact Albano’s case had in the fight for equality is difficult to discern. A GLAD spokesperson said that Levi would be the best to answer that, but was unavailable for comment.
Nevertheless, the case Albano hitches to Goodridge was decided almost entirely on the state’s constitutional amendment rules, not the principle of equal protection. Perhaps in another sign of the case’s limited impact, all seven SJC justices ruled against Albano and the other plaintiffs. Nearly a year later, the same seven justices split 4-3 on LGBT Bay Staters’ right to wed.