A gift for bringing the law to life

Issue October 2011 By Christina P. O'Neill

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."