by Ron Gregory
CHARLESTON — Temporary Supreme Court justices have agreed to suspend without pay a newly-elected Circuit Judge. The decision came following an earlier hearing from which all sitting justices had recused themselves.
Thus, Chief Justice Alan Loughry and Justices Robin Davis, Margaret Workman, Menis Ketchum and Beth Walker deemed themselves disqualified and did not participate in the matter. Instead, Acting Senior Status Chief Justice Thomas McHugh, and Judges Robert A. Waters, James A. Matish, H. Charles Carl III and Joanna Tabit rendered the decision regarding Judge-elect Stephen O. Callaghan.
Callaghan, elected to serve in the 28th Judicial Circuit, was embroiled in an election controversy that led to the hearing. Callaghan, who is said to have distributed false and misleading information regarding his opponent, long-time Judge Gary Johnson, defeated the incumbent in May 2016. The Nicholas County circuit had seen a number of mailing pieces by the candidates. One, mailed by the Steve Callaghan for Judge committee, showed photos of then-President Barack Obama and Judge Johnson digitally maneuvered to make it appear the two were together at a party. Obama is holding a glass of beer in the photo with the caption, “Barack Obama & Gary Johnson Party at the White House …” Johnson denied ever being at a party with the ex-President, who was vastly unpopular in West Virginia. In fact, a 2015 Gallup poll said 72 percent of West Virginians disapproved of Obama as President.
The back side of the flyer, attached to the Supreme Court opinion, has a picture of Johnson with a “Layoff Notice” that declares, “While Nicholas County lost hundreds of jobs to Barack Obama’s coal policies, Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda. That same month, news outlets reported a 76% drop in coal mining employment. Can we trust Judge Gary Johnson to defend Nicholas County against job-killer Barack Obama?”
The Judicial Hearing Board recommended a two-year suspension without pay based on the evidence in the case. The Supreme Court majority, with a dissent by Matish, said that recommendation was too lenient. Instead, they ordered a two-year suspension without pay, along with a $15,000 fine, costs and a public reprimand.
In his dissenting opinion, Matish said he would have gone even farther in punishing Callaghan. According to Matish, Callaghan committed “at minimum, three violations of the Code of Judicial Conduct and one violation of the Rules of Professional Conduct. He argues that Callaghan should have received at least a one-year suspension for each violation.
He goes on to say that the majority could have found multiple violations for every time the flyers were viewed by potential voters. Matish says among the “untruthful statement(s)” found with the “Obama flyer” were “the photoshopped pictures of President Obama and Judge Gary Johnson with the beer, since there was no party attended with President Obama where alcohol was served; … Judge Johnson was not invited by the President; … Obama was not even present; … Johnson did not go to the White House; and none of this had anything to do with Judge Johnson defending jobs in Nicholas County.”
Matish said publication and distribution of this false information occurred at least 15 different times, meaning Callaghan should have been suspended for 15 years. He goes on to say Callaghan interchanged the terms “Juvenile Drug Court” and “Teen Court,” which even a “first-year law student, in five minutes, reviewing West Virginia Code … could tell they were not the same. Another Callaghan flyer, Matish said, contains a color copy of a $100 bill, while “appears to be in violation” of the United States code.
“The falsity used by … Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County,” Matish wrote. “By his own actions, he has shown that he is unfit to hold a judicial office and, at the appropriate time, a new election should be held.”
The court majority noted that Callaghan filed pre-candidacy papers to run for Judge on May 11, 2015. He filed to run on January 14, 2016. In January 2016, upon the advice of his campaign consultant, Brad Heflin of Rainmaker, Inc., Callaghan commissioned an automated survey, in part, to test the effect of connecting Judge Johnson’s attendance at a child trafficking seminar in Washington with the loss of coal jobs in Nicholas County. A large majority, 67 percent, responded that the statement caused them “major concern” or “some concern.”
It was after the results of Rainmaker’s 2015 survey that Heflin created the “photoshopped” flyer that purported to show Johnson and Obama together. This flyer was allegedly mailed to voters on May 5, with the election being held on May 10, 2016. It was also posted on Callaghan’s personal and campaign Facebook pages.
When Johnson received the flyer, he notified Callaghan of his objection and demanded he take action to counteract the effect of the flyer. The Judicial Disciplinary Council also contacted Callaghan, who removed the flyer from his Facebook pages and ran eight local radio ads over a three-day period saying the information in the flyer “may be inaccurate and misleading and should not have been sent.”
Subsequently, Callaghan defeated Johnson by 227 votes.
The JIC issued a formal statement of charges against Callaghan on November 29, 2016. After hearing evidence, the JIC recommended a four one-year suspensions to run concurrently as well as censure, a reprimand, a $5,000 fine and payment of costs. Since the result of that decision would have resulted in Callaghan only being suspended for one actual year, Disciplinary Counsel objected and reiterated its request that a two-year suspension be ordered.
Callaghan primarily focused on First Amendment speech rights in his defense and argument against the suspension. The board concluded that the statements in the flyer were not entitled to First Amendment protection and were materially false. False statements are often not protected by the First Amendment.