A Nicholas County circuit judge who was elected last year was suspended without pay for two years Thursday by the West Virginia Supreme Court, which cited his “egregious behavior” in running a campaign advertisement against his opponent that the court called “in every sense, materially false.”
In levying the punishment against Stephen Callaghan, the court went beyond a punishment recommended by a state judicial hearing board.
Retired Supreme Court Justice Thomas McHugh, who heard the case with four circuit judges, wrote in the opinion that Callaghan’s “conduct violated fundamental and solemn principles regarding the integrity of the judiciary. His egregious behavior warrants substantial discipline.”
Callaghan defeated longtime circuit judge Gary Johnson by 220 votes, out of more than 6,600 cast, in a May 2016 election. Less than a week before the election, Callaghan sent out a flier to Nicholas County voters purporting to show Johnson “partying” with then-President Barack Obama.
In filing ethics charges against Callaghan, the West Virginia Judicial Investigation Commission claimed the fliers were meant 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.”
Johnson did attend a conference at the White House, in 2015, on ways to stop child trafficking. Obama was not there, and the two men have never met, according to Thursday’s decision.
The judicial hearing board recommended that Callaghan be suspended without pay for a year for violating rules judges must abide by, and a year for violating the rules lawyers in the state are required to abide by, but said the suspensions should run at the same time. Lawyers for the Judicial Investigation Commission objected to the recommendation, arguing that Callaghan’s suspensions should run one after the other.
Circuit judges are elected to eight-year terms, so after his suspension ends, Callaghan would still be a judge until at least 2024.
Thursday’s 72-page opinion also states that Callaghan must pay a $15,000 fine, and pay for the costs of the proceedings against him.
The states’ five Supreme Court justices recused themselves from the case after hiring Johnson, Callaghan’s opponent in last year’s election, as Supreme Court administrator in January. McHugh and Circuit Judges Joanna Tabit of Kanawha County, Robert Waters of Wood County, H. Charles Carl of Hampshire County and James Matish of Harrison County handed down the decision.
In a separate opinion filed Thursday, Matish said he would have suspended Callaghan for at least 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 flier alone,” the Harrison County judge wrote.
Callaghan said the flier was speech protected by the First Amendment. He filed a lawsuit in federal court against the disciplinary officials accusing him of misconduct. Callaghan has asked U.S. District Judge Thomas Johnston to put a stop to the disciplinary case against him and find that the ethics charges he faces violate his First Amendment rights.
Johnston last week put the lawsuit on hold until the Supreme Court made a ruling.
The flier wasn’t meant to be taken literally, according to Callaghan. He likened it to rhetorical hyperbole or parody.
McHugh wrote, though, that the idea of a long-time, distinguished sitting circuit judge attending a function at the White House is something that could easily be perceived as a fact.
“Frankly, it is undoubtedly because it is so believable — and when viewed in connection with the purported hardships being experienced in Nicholas County, potentially incendiary — that Judge-Elect Callaghan and his campaign consultant found it compelling campaign fodder,” the opinion states.
Callaghan “did not simply misrepresent himself on issues such as his own qualifications or endorsements, his professional competence, or his campaign’s monetary contributions. Rather, he directly and methodically targeted an opponent with fabricated material and disseminated it to the electorate,” according to the opinion.