Staff reports
The State Journal
CHARLESTON, W.Va. — Nicholas County Circuit Judge Steve Callaghan will be suspended without pay for two years, fined $15,000 and publicly reprimanded for an election flyer, though at least one of the judges hearing the case felt the penalty isn’t severe enough.
Fifteenth Judicial Circuit Judge James A. Matish said Callaghan’s actions warrant at least a four-year suspension, saying judges “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.”
“The falsity used by … Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County,” wrote Matish, one of five circuit judges chosen to hear the case after West Virginia’s five supreme court justices disqualified themselves.
Callaghan argued the flyer was “political parody,” suggesting it juxtaposed two unrelated facts — Johnson’s attendance at a federal seminar and coal job losses in Nicholas County — and allowed the public to draw its own conclusions.
But the court disagreed, finding that the flyer “exaggerated, repurposed and mischaracterized” Johnson’s attendance at the meeting “to the point that it is rendered patently untrue,” Senior Status Judge Thomas McHugh, the acting chief justice, wrote.
The timing of the flyer made it “virtually impossible” to mitigate the damage done to Johnson’s campaign, even though Callaghan removed the offending materials from his personal and campaign Facebook accounts, McHugh noted.
McHugh said the flyer was not protected speech because it contained “knowingly, materially false statements” in violation of the Code of Judicial Conduct and the Rules of Professional Conduct.
“(Callaghan’s) conduct violated fundamental and solemn principles regarding the integrity of the judiciary,” McHugh said. “His egregious behavior warrants substantial discipline…”
“We acknowledge (Callaghan’s) contention that significant sanctions would have ‘a devastatingly chilling effect on lawyers pondering the idea of running for a judicial office.'” McHugh added. “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.”
Also serving as acting justices were 4th Judicial Circuit Judge Robert A. Waters; 22nd Judicial Circuit Judge H. Charles Carl II; 13th Judicial Circuit Judge Joanna Tabit.
Justice Robin Davis disqualified herself from hearing the case Jan. 5, prompting the appointment of Senior Status Judge Thomas McHugh to sit in her place. Less than a week later Callaghan’s attorney, Lonnie Simmons, moved to also disqualify Chief Justice Allen Loughry, as well as Justices Elizabeth Walker, Margaret Workman and Menis Ketchum who had approved Johnson’s appointment as the court’s interim administrative director.
The four justices said they removed themselves “out of an abundance of caution.”
The Judicial Disciplinary Board had recommended two concurrent one-year suspensions, while the Disciplinary Counsel had sought a two-year suspension.
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