(CN) - A recently elected circuit court judge in West Virginia says a state ethics panel violated his First Amendment rights when they charged him with campaign violations.
Steve Callaghan, brother of former U.S. Attorney Mike Callaghan, defeated incumbent Nicholas County Circuit Judge Gary Johnson by 229 votes in a judicial election held on May 10, 2016.
Johnson, a respected jurist, had served on the bench for 24 years. He enjoyed a national reputation for his efforts on child abuse and neglect issues, and at the time of his loss, he was the chairman of the state Supreme Court's Court Improvement Program.
Callaghan was set to take office on Jan. 1, 2017, but in late July the West Virginia Judicial Investigation Commission charged him with unethical campaigning in his race against Johnson for sending out a flier that purported to show the judge partying with President Barack Obama.
Candidates for judicial office are required to comply with the state's Judicial Code of Conduct.
The commission said Callaghan violated the code by creating the flier and distributing it.
The flier was mailed on May 5, and Callaghan posted it on his campaign's Facebook page the same day, according to the statement of charges.
Later that night, Teresa Tarr, a state disciplinary lawyer, called the candidate to tell him the flier violated ethics rules.
Callaghan responded by taking down the Facebook post and running radio ads in the final days before the election disavowing the flier and saying it never should have been sent out.
Nevertheless, Johnson filed a complaint against Callaghan on May 26, and the commission concluded formal discipline is appropriate.
Judge Ronald Wilson, the judicial commission's chairman, wrote in the statement of charges that the flier "was intended to deceive voters into believing that Judge Johnson and U.S. President Barack Obama were drinking beer and partying at the White House while conniving with one another to kill coal mining jobs in Nicholas County."
But in a lawsuit filed Oct. 27, Callaghan says that by pursuing the charges against him the commission is violated his right his right to free speech as a candidate for public office by limiting what he could put in a campaign flyer.
The flyer, Callaghan says, was intended to draw attention to the fact that a publicly elected official of Nicholas County willingly chose to involve himself with President Obama, whom many of his constituents hold personally responsible for the recent drop in coal mining jobs.
Callaghan says he took all the steps Tarr recommended to stave off a controversy, but nevertheless found himself facing disciplinary charges.
He is seeking declaratory and injunctive relief.
Callaghan is represented by Lonnie Simmons of Ditrapano, Barrett, Dipiero, McGinley & Simmons of Charleston, West Virginia.
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