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Justice looks back at high court stints

CHARLESTON, W.Va. - Retiring state Supreme Court Justice Thomas McHugh's career on the court ends not far from where it began.

McHugh, a 76-year-old Democrat, thought about becoming a lawyer after a trip to the state Capitol in high school.

He graduated from West Virginia University, took an Army commission and expected to make a career there, but then decided against it and went back to law school. A few years after graduation, he clerked at the Supreme Court for Justice Harlan Calhoun.

The office McHugh is leaving is the same office Calhoun used to occupy.

In the small legal world, one of McHugh's former clerks when he was a Kanawha circuit court judge is Justice Margaret Workman and one of her clerks on the high court, Allen Loughry, will now takeover McHugh's old office.

McHugh, whose term on the court ends with the New Year, provided a glimpse of what it is like to be on the five-member court during a two-hour interview in his office earlier this month.

First, even though justices have won a statewide election, most people do not know who they are or what they do.

McHugh has been on the court for two separate stints. He first ran and won a 12-year term in 1980 and then won another 12-year term in 1992, but retired midway through in 1997 after serving several times as the court's chief justice. When he retired, Justice Joseph Albright remarked, "Chief Justice McHugh, you will always be my Chief Justice."

His close friend Justice Robin Davis also wrote a 300-page appreciation of his career in a special edition of the West Virginia Law Review.

But he came back to the court 2008 after Albright fell ill and eventually died. McHugh was appointed and then ran for reelection to fill the rest of Albright's term, which is now ending.

But after two decades on the court, do people walking down the street know McHugh? Not really.

"Who knows what a Supreme Court does?" McHugh said. "Newspapers; the governor - when the governor is stopped on doing something; the Legislature - when an act is overturned; but most people have no idea what a Supreme Court justice does."

McHugh said it's good to never get "too high and mighty" because a justice who goes on the street and says, 'Do you know who I am?' might have the following exchange:

"'No, I have no idea who you are.' "

"'Well, you know, I'm a Supreme Court justice."'

"'Well, that's good, but what do you do? Do you take care of disability claims?' "

McHugh said that's really what it's like.

"And it's funny because you tend think, 'Well, everybody is going to listen to me, by gosh, I'm going to put out this great order here and I'm going to go look and see what everyone says about it.' Well, most people don't understand what that is, unless they are litigant in it, and most aren't."

Sanitized

Second, being on the court can be an isolating experience.

The people that do know what it means to be justice - namely friends who are lawyers - are afraid to come back and visit the justices in their Capitol offices.

"Your circle of friend tends to be tighter," McHugh said. "People just don't want to deal with it. It's easier to just, 'I don't want to touch it,' and they stay away from you."

Because of that, it's hard to know what other lawyers think of the court's work.

About the only time a lawyer will level with a justice is if the lawyer happens to have had a drink.

"You go to a social function, nobody is ever going to come up and tell you, 'Hey . . . you know, I thought that opinion was rotten' - unless a person is drunk or something,' " McHugh said.

McHugh said he never knew if Gov. Earl Ray Tomblin is "ticked off" at the court over a January 2011 ruling. The court said the state needed to hold an election for governor a year earlier than Tomblin - then acting as un-elected governor - had wanted.

"You determine whether the governor is going to get another term or not, you never know whether they're still ticked off at you on that - you never know those things," McHugh said.

There's also the cases the court deals with. The Supreme Court does not do trials, so it mostly reviews documents or legal principals and process.

McHugh went into the private sector after he retired from the court a first time in 1997.

He was mediator, which is essentially a judge in a pre-trial, out-of-court negotiation.

There, he dealt directly with people. He remembers a man with non-Hodgkin lymphoma who blamed the fatal disease on work he did around a cleaning chemical. The man hoped to get some money from his employer so his family would be taken care of if he died. He died shortly after the company settled.

The Supreme Court justices do not come into close contact like that with people.

"This place is clinical," McHugh said. "The Supreme Court of West Virginia is a sanitized version. You don't see the tears. You don't see the emotions. All you do is read a record, which is a clinical process.

Budget victims

Third, McHugh said budget problems at the state's newspapers and wire services have taken the court out of the spotlight. Papers with shrinking staffs spend less time covering the court, he said.

When he was at the court the first time, from 1981 to 1997, McHugh said there were two full-time reporters covering the court for wire services, The Associated Press and UPI.

There is no longer a UPI presence in the state, AP has lost staffers and Charleston's two dailies rarely send reporters to anything but the highest profile oral arguments.

"If there's one area in which I think the spotlight is taken off - which I worry about, from a public's point of view - is the oversight or observation by news media on the Supreme Court: it should be more, but, there again, it's a victim of budgets," McHugh said.

Sometimes, important decisions can go unnoticed for days or, perhaps, permanently.

"There are things that get through - I can't think of one right now - that probably should have had a little bit more attention given to it," McHugh said.

The weekly West Virginia Record, which is funded by an industry group, does cover the court regularly.

"In fairness to them, they will pick it up and put it in, but, usually, they are looking for a spin on it, they're not objective," McHugh said, though he said the writing can also be very accurate.

But McHugh said he is not sure many reporters have the relationship reporters in the past had.

In the past, members of the court felt comfortable with Supreme Court beat reporters to tell them, off the record, to pay attention to certain issues.

"You have to understand you're going to be blistered at times, and everyone accepts that, but the judge could give you insight into that sometimes," McHugh said.

(Two of the reporters McHugh cited for their day-to-day coverage of the court have, incidentally, both ended up in spots all-too common for journalists in this new era of smaller staffs and tighter budgets: Brian Farkas, a former reporter at The Associated Press, now works for the state as executive director of the West Virginia Conservation Agency. A.V. "Andy" Gallagher, a former UPI reporter, is executive director of the West Virginia Housing Institute, a trade group for the factory-built housing industry.)

Not giving up

McHugh plans to stay active after he leaves the bench.

Part of it is an obvious dedication to the community. He chairs the Thomas Hospital Board of Trustees and was active in the Children's Home Society. His sense of fairness is obvious: when he came back to the court, he was still receiving a judicial retirement, but he created an elaborate system to return money to the state from both his salary and pension checks to make sure the total amount he collects annually doesn't exceed the salary made by his four colleagues.

McHugh said he returned more than $300,000 to the state.

The other is a deeper, mortal worry. McHugh watched two close friends from West Virginia University die from disease.

One was former attorney general and legislator Roger Tompkins II, who died in 1997 at age 60 after battling Alzheimer's disease for several years. The other was U.S. District Judge Charles Haden who was diagnosed with non-Hodgkin's lymphoma and died in 2004. The first disease takes the mind, the other takes the body.

McHugh said the three were fraternity brothers and close in college. He presided over Thompkins' second wedding and was in Haden's wedding.

"It was just such an incongruous situation for me to see two of my closest friends go through this horrible process, "McHugh said. "And, so, you know, that was not pleasant. But I made the judgment watching all that: I'm not going to give up, I'm going to do whatever I can do to stay active."

Contact writer Ry Rivard at ry.rivard@dailymail.com or 304-348-1796. Follow him at www.twitter.com/ryrivard.

 


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