West Virginia Judge Suspended Two Years Over Campaign Flyer

(CN) – A West Virginia judge has been suspended for two years and fined $15,000 for a campaign flier purporting to show his election opponent drinking and partying with President Barack Obama.

The decision handed down by the Supreme Court of Appeals of West Virginia on Feb. 9 centers on a campaign flyer Stephen Callaghan sent out five days before the Nicholas County’s May 2016 judicial election.

Callaghan was challenging incumbent Judge Gary Johnson and the flier, using photo-shopped images, depicted the judge and the president drinking and otherwise carrying on the White House.

The caption read “Barack Obama & Gary Johnson Party at the White House.” Copy on the other side of the flyer read “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?”

Johnson had visited the White House compound in June 2015 for a conference sponsored by the federal Administration for Children and Families, but never actually entered the White House, he didn’t see Obama at the event, and there was no party or other function involving alcohol.

After Johnson objected, Callaghan removed the flier from his Facebook pages and ran radio ads saying the flier’s “specific characterization of the White House visit may be inaccurate and misleading,” and “candidate Callaghan apologizes for any misunderstanding or inaccuracies.”

Callaghan won the election by 220 votes.

Johnson filed a formal complaint against Callaghan, and the West Virginia Judicial Hearing Board later concluded the flyer was “in every sense, materially false” and recommended that the judge-elect be disciplined for three violations of the West Virginia Code of Judicial Conduct and one violation of the West Virginia Rules of Professional Conduct.

Hoping to stave off sanction, Callaghan then sued the hearing board’s members, alleging they were violating his First Amendment right to free speech. A federal judge tossed the case, holding that he statements in the flyer were not entitled to First Amendment protection because of their falsity.

With that, the matter then moved to the state Supreme Court of Appeals, for a decision on Callaghan’s fate. But before a hearing could be held, the entire court was forced to recuse itself because it had previously hired Johnson to be Supreme Court administrator.

The case was ultimately heard by retired state Supreme Court Justice Thomas McHugh, who served as acting chief justice, and four circuit court judges.

In his 72-page opinion, Judge McHugh wrote that Callaghan’s conduct had “violated fundamental and solemn principles regarding the integrity of the judiciary” and that “His egregious behavior warrants substantial discipline.”

“While this Court remains mindful that sanctions are not for the purpose of punishment, this Court must impose discipline in appropriate measure to ‘instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society,'” McHugh said.

“Moreover, ‘[a]ny sanction must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter the individual being sanctioned from again engaging in such conduct and to prevent others from engaging in similar misconduct in the future,” he continued. “We acknowledge Judge-Elect Callaghan’s contention that significant sanctions would have ‘a devastatingly chilling effect on lawyers pondering the idea of running for a judicial office.’ In that vein, we sincerely expect that these sanctions will indeed have a devastatingly chilling effect on lawyers pondering the idea of disseminating falsifications for the purpose of attaining an honored position of public trust.”

In a separate opinion that concurred in part and dissented in part from the majority, Circuit Judge James Matish  said his colleagues hadn’t gone far enough in sanctioning Callaghan, and that he would have, at minimum, suspended the judge-elect for four years.

“The entire circumstance merits additional charges and punishment because, after reviewing the record presented and hearing oral argument, it is my opinion that the punishment is still not severe enough, because of the numerous violations that occurred with the so-called Obama flyer alone,” Matish wrote.

“As a country, we have gone far astray from what is right and what is good,” he continued. “We have become the most connected nation with our cell phones, smart phones, tablets, computers, and social media, while simultaneously becoming the most disconnected nation because of our cell phones, smart phones, tablets, computers, and social media.

“In trying to one up the next guy at his expense, we fail to realize that we harm ourselves in the process. Once you hit ‘Send,’ it is out there forever, and you cannot take it back,” Matish said. “As a judge or judicial candidate, you are expected to have a standard to live up to, not only in your personal life and how you conduct yourself on the bench, but how you run a campaign to secure the trust of the public in voting to elect you. It is disturbing to me that Judge-elect Callaghan admitted to reading the Code of Judicial Conduct when he decided to run. However, the Code of Judicial Conduct was later changed and adopted December 1, 2015, yet Judge-elect Callaghan, in his testimony, never admitted to stating specifically that he read the new Code of Judicial Conduct nor talked about any Code of Judicial Conduct to the media company he hired. Also, the media company admitted to not having talked with Judge-elect Callaghan about it either.

“The falsity used by Judge-elect Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County, the 28th Judicial Circuit,” Matish concluded. “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.”

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