By Matt Murphy
STATE HOUSE NEWS SERVICE
STATE HOUSE, BOSTON -- With a decision expected soon from the Patrick administration whether to appeal a court-ordered sex change operation for convicted killer Michelle Kosilek, Republican gubernatorial candidate Charlie Baker on Thursday said an appeal should be "common sense."
"A court ruling that says a convicted murderer is entitled to a sex change operation courtesy of Massachusetts taxpayers' dollars should be appealed," Baker said in a statement to the News Service.
The Patrick administration, in consultation with the attorney general's office, has until Friday to decide whether to appeal to the full First Circuit Court of Appeals after a three-justice panel of the court two weeks ago upheld a lower court ruling that Kosilek, who is transgendered, has a "serious medical need" for the gender reassignment surgery.
Attorney General Martha Coakley said last week that no decision had been made. A spokesman for her office said Thursday he had no updates to provide. The state's attorney on the case is Nancy White, general counsel for the Department of Corrections and a designated special assistant attorney general.
The administration has a second option, which would be to appeal directly to the U.S. Supreme Court. The deadline for a decision on that is April 17.
"We would look at that the way you'd look at any decision and say is there a basis for appeal? Do we want to bring it up? It is precedent setting and the legal standing around medical necessity is one we'll have to look at, but we haven't made a decision yet," Coakley told FOX25 News last week.
Baker said there shouldn't be much to think about.
"This case would set a dangerous and troubling precedent, and the state should pursue every legal avenue available to prevent it from standing. It seems like basic common sense that you would fight this to the end," he said.
Before identifying herself as Michelle, Kosilek was a man named Robert, who was sentenced to life without possibility of parole for murdering his wife in 1990.
Following the appellate decision on Jan. 17 to uphold the court-ordered surgery, Kosilek's attorney Joseph Sulman filed a motion in U.S. District Court on Monday requesting a status conference on the Department of Correction's plan to provide the sex reassignment surgery.
Sulman, in the filing, accused the DOC of violating the spirit of the initial 2012 court ruling in Kosilek's favor by failing to take necessary actions to provide the surgery as promptly as possible at the conclusion of the state's appeal. The lawyer said the "most glaring" example of the stalling tactics is the fact that there is still no application for a medical license for the selected out-of-state surgeon to operate in Massachusetts.
When Gov. Deval Patrick decided to appeal U.S. District Court Judge Mark Wolf's ruling that the state should pay for the surgery, he said he did so out of concern for safety reasons for both Kosilek and other inmates.
Asked about the most recent court decision, Patrick told FOX25 over the weekend, "It still seems like a weird outcome, and I don't mean that in any disrespect to the prisoner, but a pretty expensive accommodation. But if we are required by law we will do our duty."