Judge-elect files lawsuit over ethics charges

By Kyla Asbury | Nov 4, 2016

CHARLESTON – Nicholas Circuit Court judge-elect Stephen Callaghan has filed a lawsuit asking for a federal judge to dismiss a disciplinary case against him. Callaghan is facing ethics charges for campaign tactics during the May primary, in which he defeated longtime Nicholas Circuit Judge Gary Johnson by just over 200 votes.

CHARLESTON – Nicholas Circuit Court judge-elect Stephen Callaghan has filed a lawsuit asking for a federal judge to dismiss a disciplinary case against him.

Callaghan is facing ethics charges for campaign tactics during the May primary, in which he defeated longtime Nicholas Circuit Judge Gary Johnson by just over 200 votes.

Callaghan claims the ethics charges against him are a violation of his constitutional rights, according to the Oct. 27 complaint filed in the U.S. District Court for the Southern District of West Virginia.

The complaint names Judge Ronald E. Wilson, Robby J. Aliff, Judge Lawrance J. Miller Jr., Teresa A. Tarr and Rachel L. Fletcher Cipoletti as defendants.

Callaghan claims the ethics charges violate his First Amendment rights.

The plaintiff decided to run for circuit judge and formed a committee called “Callaghan for Judge 2016,” and actively began campaigning in May 2015, according to the suit. In December 2015, he contracted with Rainmaker Inc. to provide campaign consulting and advertising services.

Callaghan claims Rainmaker conducted research and found the July 2015 news story detailing Johnson’s visit to the White House the month before and when he learned of this fact, it was his opinion that any association between Johnson and the White House at a time when coal jobs were being lost in Nicholas County would not be viewed favorably by the voters.

The story would be viewed by voters in evaluating the judgment of Johnson, who chose to attend the event and, since the event was held at the White House, Callaghan believed that it was reasonable for anyone to conclude or have the opinion that the event was sanctioned and approved by President Barack Obama, according to the suit.

Callaghan claims that although it is not critical to establish the essential truth expressed in the flyer, news reports published about the event do not mention anything about whether or not Obama was present or absent.

In March, Johnson referenced the visit to the White House on is campaign’s Facebook page and, given the exposure of the visit in the media and Johnson’s own advertising of his visit, it was apparent Johnson wanted the public to be aware of the visit and his invitation, according to the suit.

Callaghan claims he was well within his rights to express his own opinion about Johnson’s decision to attend the event and sought to create advertising consistent with his opinion.

Rainmaker created a flyer that Callaghan approved that had different colored party streamers in the background, photoshopped pictures of Obama and Johnson and it appears that Obama is holding a glass of beer, according to the suit.

“The text at the top of the front of this flyer states, ‘Barack Obama and Gary Johnson Part At the White House …,’” the complaint states.

Callaghan claims the back of the flyer stated “while Nicholas County loses hundreds of jobs,” and has a pink slip with a layoff notice on it asking voters to vote for him and questioning if Nicholas County could trust Johnson since he’d been at the White House event.

The plaintiff specifically and categorically denies that the flyer was created to mislead the public or imply that Johnson was personally responsible for the loss of Nicholas County jobs and that the public had the right to question Johnson’s judgment in attending the event, according to the suit.

Callaghan claims that within hours of the flyer being mailed out, Tarr called him and had concluded that the flyer, rather than being a statement of opinion, was a statement of literal facts and outlined the steps Callaghan needed to take to avoid controversy over the advertising and to mitigate any perceived harm, which he did.

While the plaintiff had immediately took action after being contacted by Tarr, he was not in any way conceding that he had knowingly, or with reckless disregard for the truth, made any false or misleading statement, according to the suit.

Callaghan claims on May 16 Nicholas Johnson, Gary Johnson’s son, filed a formal complaint with the West Virginia Lawyer Disciplinary Board and the West Virginia Judicial Commission and on July 18, the JIC issued a formal statement of charges against him.

In that statement of charges, the JIC said Callaghan created the two-page flier or caused it to be distributed to voters in Nicholas County about a week before the election. The JIC charged Callaghan with violating the state’s Judicial Code of Conduct, which are the rules judges and judicial candidates must follow.

The flier “was intended to deceive voters into believing 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,” the JIC statement says.

According to the JIC statement, Callaghan said the idea for the flier began with Johnson’s June 2015 trip to Washington for a child trafficking seminar. Johnson, who is chairman of the state Court Improvement Program, attended the conference hosted by the National Court Improvement Program.

“The press release and the news article made absolutely no mention of a party, alcohol or President Obama attending the event,” the JIC charges state. “Judge Johnson has never met President Obama. Judge Johnson has never been invited to the White House by President Obama.”

On May 5, the day the flier was mailed to voters, it also was posted on Callaghan’s Facebook campaign page, according to the JIC statement. It also says a state disciplinary lawyer called Callaghan that night and told him she thought it violated ethics rules. But she said if he took the post down and ran radio ads balancing the claims made in the flier, she wouldn’t file a disciplinary complaint against him, according to the JIC statement of charges.

The statement says Callaghan did remove the post from the campaign Facebook page and posted an apology saying the mailer provided an inaccurate image of Johnson.

He also purchased radio ads, according to the statement.

“If you receive a mail advertisement recently from Steve Callaghan, Candidate for Nicholas County Circuit Judge, showing Judge Gary Johnson visiting the White House, please understand that the specific characterization of the White House visit may be inaccurate and misleading and should not have been sent containing this inappropriate information,” the radio ad said, according to the charges.

Nicholas Johnson filed the complaint against Callaghan on May 26, about two weeks after the election. Nicholas Johnson is an attorney with Bailey & Glasser in the firm's Washington, D.C., office and the son of Judge Johnson.

Callaghan issued a statement Aug. 2 to The West Virginia Record.

“During the 2016 Nicholas County Circuit Judge nonpartisan election, my campaign committee, for which I take full responsibility, produced a mail advertisement addressing a visit to the White House by Judge Gary Johnson and included a Photoshopped parody on the cover depicting President Obama and Judge Johnson ‘partying,’ Callaghan said in the statement. “There is no question the First Amendment protects a vigorous and robust exchange of ideas, parody, and other expressions of opinion, particularly in the context of an election. …

“However, within hours after this mailer was sent and appeared on my campaign’s social media, I took a number of actions to remove this material from my campaign’s social media and I ran several radio commercials apologizing for any misunderstanding the mailer may have created if the parody on the cover were taken literally. My intent was never to mislead the public in any way and I took quick and decisive action to make sure the citizens were not misled.

“Once again, as I stated prior to the election, I take full responsibility for my actions and I personally apologize for any misunderstandings or perceived inaccuracies in my campaign material.”

Johnson is a nationally recognized leader in child abuse and neglect issues, and he currently is chairman of the state Supreme Court’s Court Improvement Program.

He also is a member of the 2014 Governor’s Intergovernmental Task Force on Juvenile Justice, and the Commission to Study the Residential Placement of Children. As Chairman of the Court Improvement Program, he helped establish the first West Virginia University College of Law class on children and the law.

Johnson was given the Steward of Unity Award by the West Virginia Child Care Association in 2013; the Commissioner’s Award by the Administration on Children, Youth and Families in 2009; and the Extra Mile Award by the West Virginia Children’s Justice Task Force in 2008. In 1999, he was named an Angel in Adoption by the United States Congress and the Congressional Coalition on Adoption Institute.

In his federal complaint, Callaghan is seeking the court to enter a temporary restraining order and a preliminary injunction to enjoin enforcement of the Rules for Judicial Conduct and Rules of Professional Conduct; award a permanent injunction prohibiting the further enforcement of the rules and award costs of the action. He is being represented by Lonnie C. Simmons of DiTrapano, Barrett, DiPiero, McGinley & Simmons PLLC.

U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-10169

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