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Justice Thomas McHugh recalls court career

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photo courtesy of the West Virginia Supreme Court photo courtesy of the West Virginia Supreme Court
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Outgoing West Virginia Supreme Court Justice Thomas McHugh described his more than 20-year career at the state's highest court in two words – trust and passion.

And that trust and passion will carry on. Although McHugh will leave his seat on the bench at the start of the New Year, retirement won't stop him from doing what he loves.

Law has been a labor of love to the Charleston-born justice.

"There are not many people who have been as blessed as I have," he said. "I have loved it since law school. I wanted to be a lawyer as far back as I remember."

That's why after serving as a first lieutenant in the U.S. Army, McHugh decided to go to the West Virginia University College of Law.

From there, he forged his own path, exploring many areas of law.

But to this day, he looks back with reverence at his time as a law clerk – especially when he served as clerk to his mentor, the former West Virginia Supreme Court Justice Harlan Calhoun.

"To this day, I think of him and what he would do. … He was to me the epitome of a judge and what a judge or justice should be," he said. "He was reserved, polite to litigants and thoughtful. He was not loud and boisterous and did not make a fool of a lawyer with their arguments."

After serving as a law clerk, McHugh was elected as a Kanawha County Circuit Court judge. There, he found another mentor, fellow Kanawha County Circuit Judge Robert Smith.

"He was a very wise man," he said. "He was very good to me."

McHugh's law career didn't stop there. In 1980, he was elected to the state's highest court. He was reelected in 1992 and 2010.

"I'm in an interesting position because I retired twice," McHugh said.

In his "first retirement," McHugh served as of-counsel to the firm Allen Guthrie McHugh and Thomas.

Later, McHugh received an unexpected call that would put him back on the bench.

"When Justice Joseph Albright was sick, the chief justice at that time called me and asked if I would sit in for him," McHugh recalled.

Albright died in 2009 and the then-Chief Justice Brent Benjamin appointed McHugh to temporarily serve in Albright's position. The then-Gov. Joe Manchin later appointed McHugh to serve as a justice until McHugh was elected in the 2010 general election.  

So why did he go back?

McHugh says the main reasons are because of the members of the court and his passion for the law.

One of McHugh's long-term passions has been protecting children's rights. McHugh said although abuse and neglect don't draw as much attention as multimillion dollar verdicts, he thinks these cases are the most important.

"It's an incredibly unfortunate situation. I cannot tell you in words how bad it can get. Circuit judges see it firsthand. … But it's something most people don't see. It's an extremely important component."

McHugh said all judges will become passionate about children's rights. 

"You have a million dollar case and can talk about that but a child is worth more than that. They're victims. They didn't choose to be that way," he said.

And he thinks about these cases the most upon retirement.

"I think on reflection, there's one thing you think about as a judge," he said. "Did you do everything you could do to protect the interests of the children in these cases? Regardless of how hard you try, there's always something to do. And it's not just the courts. It's the Legislature, too."

Trust has been another major component to McHugh's career.  

"Judges have incredible power and authority. You should never misuse that power and authority. That's self-restraint. Self-restraint and you just always have to understand that. You are serving the public, and that trust is given to very few people. Misusing that trust is an unconscionable act."

It's not just about trust in one justice, however. It's about trust in the judiciary, McHugh said.

But problems lingered. One of the biggest was the perception of the state Supreme Court. McHugh said this was very concerning.

"There were perceptions that it was unruly and that people tend to get in controversies and that became the press items and not the cases that were done by the court," he said. "And so the court has made great efforts to lessen the volume coming from the court."

But even with the changes in appellate procedure, McHugh said that perception carried on. For 11 years, the American Tort Reform Association has ranked West Virginia near the top of its annual Judicial Hellhole list.

McHugh said that perception is frustrating.

"Once you get logged in on those you become a cynic on that," he said. "We've worked very hard to change that. We've adopted new rules of appellate procedure and it's the best in the country. As hard as we've tried, we see those rankings. I've almost come to the conclusion that regardless of what I could have done or any other member, it's not going to change. Whoever is doing that is locked into that."

McHugh said every case has an opinion, and he said the main problems cited are large jury verdicts and the state's lack of an intermediate court. McHugh said the court has strict requirements and many times cannot interfere with jury awards.

"This intermediate appellate court is nonsense," he added. "It adds another layer of government and it's probably in the range of $10-15 million."

As for the court's future, McHugh said he thinks fairness of the court will continue with the newly-elected state Supreme Court Justice Allen Loughry.

McHugh advised Loughry to understand each case, listen to all sides, make reasoned judgments, never favor one side and to remember to ask the question, "Will this decision stand the test of time?"

But the most important thing to remember, McHugh said, is to take reputation to heart.

"It's an interesting thing about judges," he said. "If you get a reputation of unfairness, you will never shake it. If you have a reputation for fairness, you eventually can lose it if you make missteps. It's a lot harder if you're designated as unfair to ever get a reputation of fairness. From day one, you have to start with tough luck. I will do what I think is right and let the chips fall where they may."

Do vacations on sunny beaches await McHugh on retirement?

Maybe eventually, but McHugh says as long as he is in good health, he will continue to work.

McHugh will serve as of-counsel to the firm Bowles, Rice, McDavid, Graff & Love PLLC. There, McHugh mainly will deal with mediations.

 "I love to work," he said, "As long as my mind functions and I'm in really good health, I will continue to work. I could never stay retired unless my health or mind dictated."