The robe that Massachusetts Appeals Court Justice James F.
McHugh wears has a history. It originally belonged to the late
Judge George MacKinnon of the U.S. Court of Appeals for the
District of Columbia Circuit, whom McHugh clerked for from 1970 to
1971.
"To his credit, he often hired clerks that had different
substantive views," McHugh said. "I was working for a judge who
listened, even though he didn't always buy what I was selling."
After MacKinnon died in 1995, his widow sent his judicial robe
to McHugh, who since then has worn this cherished mantle in the
spirit of his mentor, striking a balance of consensus-seeking and
leadership.
MacKinnon wasn't the only one to recognize McHugh's unique
talents and professionalism. The National Center for State Courts
will bestow McHugh with the prestigious William H. Rehnquist Award
for Judicial Excellence -- a first for a Massachusetts
judge.
The award, instituted in 1996, recognizes a state court judge
who demonstrates outstanding qualities of judicial excellence. U.S.
Supreme Court Chief Justice John G. Roberts will present the award
to McHugh at the Supreme Court in November.
The award will be the capstone to a 26-year career on the bench
for McHugh, who on Sept. 27 announced his retirement, effective at
the end of February 2012.
McHugh, who will be 68 on Feb. 11 and is in good health, says
his decision to retire now is driven by the awareness that the
mandatory retirement age of 70 is near, and by personal and family
reasons. In his remarks to the Appeals Court on Sept. 27, he noted
his wish to do "one more useful thing," whether it is in the legal
arena or on a larger stage. "One more useful thing is writ large,"
he tells Massachusetts Lawyers Journal.
A consensus builder
McHugh received a unanimous nomination for the Rehnquist Award
from the current justices of the Supreme Judicial Court, along with
letters of support from chief justices and community leaders. Over
the course of his 26-year judicial career, he has been both a
consensus builder and a meticulous jurist, according to those who
have worked with him.
After receiving his bachelor's degree from Brown University in
1965, McHugh served in the U.S. Navy from 1965 to 1967, then
attended Boston University School of Law. After graduating
magna cum laude in 1970, he clerked for MacKinnon before
joining Bingham, Dana & Gould (now Bingham McCutchen LLP),
where he later became a partner. In 1985, Gov. Michael Dukakis
appointed McHugh to the Superior Court, where he served until Gov.
Paul Cellucci appointed him to the Appeals Court in 2001.
In addition to his duties on the bench, McHugh has played a
significant role in improving the legal profession, including
overseeing the implementation of the MassCourts computer system and
serving on the Supreme Judicial Court Committee on Judicial Ethics
and the Task Force for Hiring in the Judicial Branch. He has taught
at Boston College Law School and Northeastern University School of
Law, and he is on the editorial board of the Massachusetts Law
Review, the longest-running scholarly journal in the nation,
which is published by the Massachusetts Bar Association.
Appeals Court Chief Justice Phillip Rapoza says McHugh's
decision to retire now "was not one that he took lightly" and noted
that McHugh's contributions to the judiciary are significant, not
only as a sitting judge, but as a leader in the initiative to move
the court from a paper-based to a technology-based approach.
"Both as a judge and as one involved in court operations, Jim
McHugh is recognized as a consensus builder, but he never hesitates
to speak up and to speak out as the situation may require," Rapoza
stated in the weeks before McHugh's retirement was announced. "But
his strongest talent as a communicator is that he is a great
listener and he is the type of person to whom people are drawn for
advice, for company and for comfort. Perhaps that is why he is
viewed as both a colleague and a friend, not only by his fellow
judges, but also by every member of our Appeals Court
community."
"I remember when I was at the bar, he was a judge before whom
everybody wanted to appear," says retired SJC Chief Justice
Margaret H. Marshall. "He was a great trial judge, and he continued
that on the Appeals Court."
A legal architect
Those who have worked with McHugh most closely observe how he
approaches each idea and concept methodically - not an unusual
trait among judges, but one which he has perfected, at least in the
eyes of one colleague who served for 17 years as an attorney with
the Massachusetts Appeals Court.
"I am sure that in retirement, Judge McHugh will find a way to
be twice as busy and three times as useful," observes Roger L.
Michel Jr., a member of the Parole Board and editor in chief for
the Massachusetts Law Review. "As much as the appellate
bar will miss him, my guess is that the gap he leaves behind will
be felt nowhere more keenly than among his colleagues at the court
who have come to rely on his steady presence and wise counsel."
Michel adds, "He drafts opinions like an architect drafting a
building. He never loses sight of how his decisions will play out
in the real world."
Michel notes McHugh's legal acumen and his meticulous approach;
a preternatural intuition for the way a case is going and the way
it will work out. All these things separate great judges from good
ones.
Appeals Court Chief Justice Phillip Rapoza added, "As a judge,
he is a gifted legal scholar and an accomplished writer. He is a
clear thinker with a gift for clarifying the obscure and for making
the complex sound simple. Just as important, his opinions reflect a
healthy dose of common sense, as well as an understanding of the
important role our courts play in bringing the law to life and
seeing that justice is done."
Consensus without compromise
Michael Keating, now a partner at Foley Hoag LLP, appeared
before McHugh several times in Superior Court. He describes McHugh
as an excellent trial judge, one who was attentive, informed,
courteous and who rendered prompt decisions. The Rehnquist Award
represents "a wonderful capstone to his career," Keating says, and
his departure "will be a big loss to the bench."
Keating's primary experience with McHugh was outside the
courtroom, as Keating served as the chair of the Court Management
Advisory Board, which was established by the SJC following the 2003
Monan Report's call for wholesale changes to the state's court
system. "He stepped into what was a really difficult situation,"
Keating says of McHugh's role leading the MassCourts
implementation, "and not an area in which he had previously had a
lot of experience."
The two also served together on the Task Force for Hiring in the
Judicial Branch, where McHugh serves as the draftsman of the
group's reports, four of which have been issued to date.
"He listens, and understands the perspectives people bring to
bear. If he has a different perspective, he articulates it in a
civil way; he's not a bully about his position," Keating says.
However, "He won't compromise his own principles."
Scott Harshbarger, senior counsel in the Boston office of
Proskauer Rose and former Massachusetts attorney general, chairs
the Task Force for Hiring in the Judicial Branch. "We all owe a
great deal to Jim McHugh as our scribe," Harshbarger said in the
weeks before McHugh announced his retirement. McHugh's role, as a
drafter of reports, crystallizes all of the task force members'
contributions. His ability to focus the group to set priorities to
have a systemic impact "is very important, and he deserves an awful
lot of credit for that."
"He sees the need and has the perspective to effect change with
the fewest possible edges," Harshbarger says. "That's why I
consider him to be a leader."
Similarly, McHugh earns praise for his service, from 1999 to
2009, as chair of the SJC Committee on Judicial Ethics, which
advises judges on issues of judicial conduct, including the realm
of potential for conflict of interest.
That committee "is not a popular place to be," notes Marshall,
who implemented it. But because Massachusetts has one of the
strictest judicial ethics codes in the country, prompt, proactive
advice is much needed. Marshall says that under McHugh's
leadership, the committee delivered.
Shepherding change
"The Rehnquist Award is the Nobel Prize of judicial
administration," says Marshall, who tapped McHugh in 2001 to chair
a small group of experts charged with reviewing and making
recommendations for the implementation of MassCourts. The Trial
Court's Web-based, statewide case-management system serves as a
central infrastructure for all court users in all seven Trial Court
departments. Previously, the seven departments all had
different information technology systems.
When Chief Justice for Management and Administration Chief
Justice Robert A. Mulligan asked McHugh to step up his role on
MassCourts by leading the implementation as a special advisor, the
IT effort was "floundering," according to Mulligan. And while it
would have been understandable and justifiable for McHugh to say
no, "He willingly took that on,"Mulligan says.
McHugh and Trial Court Chief Information Officer Craig
Burlingame "talked to everybody who would listen" about the need
for a more modern, user-friendly court system -- one that
would be comparable to the systems that, by then, many people had
at home.
"He was respectful of those in the trenches doing the work every
day," says Superior Court Chief Justice Barbara Rouse.
"We're in the justice business," McHugh says, explaining the
need to combine the daily functioning of the courtroom while
setting goals for the timely disposition of cases. "The technology
is simply a tool, not an end in itself. If you begin to forget
that, you're lost."
The access case made in heaven
While serving as a partner at Bingham, Dana & Gould from
1977 to his first judicial appointment in 1985, McHugh concentrated
on admiralty law, banking law and commercial disputes. He
represented The Boston Globe, and successfully argued an
access case before the U.S. Supreme Court.
The 1982 case, Globe Newspaper Company v Superior
Court, involved contesting a state statute that called for
closing a courtroom when a rape victim under the age of 16 is
testifying.
"You can see the benevolent intent behind that, but it was in an
era when courtroom closings were fairly common for a whole variety
of reasons, and newspapers around the country were becoming
concerned about that," McHugh says. The victim, her family, the
defendant and the district attorney all initially had no objections
to the court being open, and yet the judge closed the courtroom
because the statute made no exceptions.
After twice losing arguments before the SJC, the Supreme Court
agreed to hear the case, which McHugh argued and won. The
experience "was, in a word, exhilarating," says McHugh. "I had
never seen a USSC argument before -- followed by as exciting a
30-minute give-and-take as a lawyer can hope to have. I was sorry
to see the little red light that signaled the end."
The plaintiff attorney, Mitchell Sikora Jr., was the state's
assistant attorney general at the time, and was appointed to the
Appeals Court in 1996. "Having him on the other side," McHugh says,
"added to the intensity of the preparation and the exhilaration of
the argument, for I had a rebuttal opportunity and had to think
about what to say in response to points he made, quite well, during
his presentation."
The two became friends soon after the case, and briefly traveled
to a number of places to give presentations and interviews about
the case, which Sikora characterizes as a law professor's dream,
involving three different dimensions of law.
The Supreme Court was developing the doctrine of First Amendment
right to access to criminal trials on the part of the press during
the three years in which the case was pending. Meanwhile, the SJC
was construing the Massachusetts juvenile victim closure status
restrictively in order to keep it in line with developing
constitutional edict. The case also represented an example of how
courts interpret and apply legislation. In addition, research on
the case reached back to 16th century English common law to
determine the scope of public trials of that period.
McHugh will return to Washington -- where he won the
Globe case, and where he clerked for MacKinnon -- to
accept the Rehnquist Award from U.S. Supreme Court Chief Justice
John G. Roberts on Nov. 17.
Sikora commends McHugh for his 26 years on the bench, but also
for his work in the public interest. "He left a big and successful
law firm where he could have spent another decade or two," Sikora
says. "He gave a quarter century, so we can't be greedy and say,
'Jim, we want those extra two years."
"Anyone who has spent any amount of time with Jim McHugh has
experienced the quiet dignity that is central to his character,"
says Appeals Court Chief Justice Rapoza. "He is steady and solid
and the type of person on whom others routinely rely. That said, he
is also one who is uncomfortable with praise and to whom humility
comes naturally. In being named this year's recipient of the
Rehnquist Award, he is receiving attention that he would never
seek, but which he so richly deserves."