CHARLESTON – The man who defeated a longtime Nicholas County circuit judge and new state Supreme Court administrator in last year’s election has a hearing before the Justices next week.
In November, the state Judicial Hearing Board recommended that Stephen Callaghan be censured, reprimanded and suspended as a judge for two years for violations of judicial ethics related to his May victory over Gary Johnson. It also recommended that he be suspended from practicing law for a year.
On Jan. 4, Johnson was named interim Court Administrator after the Justices voted to terminate Steve Canterbury from the job. Also relieved of duties was former General Administrative Counsel Kirk Brandfass.
Callaghan’s challenge to the Hearing Board’s recommendations is scheduled for Jan. 10. Justice Robin Jean Davis has recused herself from hearing the case, but Court Clerk Rory Perry says Johnson’s new position has no bearing on the case.
“The issues in the case before the Court are whether Stephen O. Callaghan should be sanctioned for his conduct in the election,” Perry noted in a disclosure to counsel for both parties written on behalf of Chief Justice Allen Loughry and Justices Margaret Workman, Menis Ketchum and Beth Walker. “The complaint filed against Stephen O. Callaghan with the Judicial Ethics Commission was filed by the son of Gary L. Johnson, Nicholas Johnson.”
In the letter, Perry says Loughry, Workman, Ketchum and Walker have reviewed the matter to determine if they should be disqualified from hearing Callaghan’s appeal.
“These Justices have determined they are no disqualified,” he wrote. “More importantly, they have no personal bias or prejudice against Stephen O. Callaghan. The appointment of Gary L. Johnson to an interim administrative position is purely an administrative matter that he, nor any members of his family, will be affected by the outcome of this case.”
Perry tells counsel that they must inform him by Jan. 9 if they object to any of the remaining Justices hearing the matter.
In a separate memorandum to Perry, Davis said events compel her to recuse herself. Senior Status Justice Thomas McHugh will take her place on the bench.
“All the conduct that Judge Callaghan has been accused of engaging in was directed at undermining Judge Johnson’s campaign for reelection,” Davis wrote. “Judge Johnson was defeated and now the Court is being asked to sanction Judge Callaghan for alleged unethical conduct that may have contributed to Judge Johnson’s election loss.”
Davis says she was prepared to hear the case until Jan. 4 when the Justices voted to make Johnson the interim administrative director.
“On January 4, the Court held a conference at which, without prior notice, we were asked to vote on termination of our Administrative Director, Steve D. Canterbury,” she wrote. “I voted to retain Mr. Canterbury. The majority of the Court voted to terminate Mr. Canterbury. Immediately after that vote, the Court was asked to decide whether Judge Johnson should be appointed as the Interim Administrative Director.”
Davis says she abstained from voting on Johnson’s appointment.
“I believe that as a result of the Court appointing Judge Johnson to be the interim Administrative Director, my impartiality in this case might reasonably be questioned,” Davis wrote. “Whether I believe Judge Callaghan should be sanctioned is of no moment. The critical question is whether Judge Callaghan should have his fate decided by someone whose impartiality could not be questioned.”
Callaghan’s attorney, Lonnie Simmons of DiTrapano Barrett and DiPiero in Charleston, said his team is reviewing all documents and actions regarding the matter to weigh its options before deciding if it will seek the removal of any other Justices.
In November, Circuit Judge Lawrance Miller Jr. wrote that the Judicial Hearing Board recommended that Callaghan be censured as a judicial candidate and reprimanded as a lawyer.
Ethics charges were brought against Callaghan after his alleged smear campaign against Johnson, who had presided as circuit judge in Nicholas County for 23 years. Callaghan defeated Johnson by 220 votes.
The West Virginia Judicial Investigation Commission charged Callaghan with violating the rules judges and judicial candidates are required to abide by in August. Callaghan filed a lawsuit in October asking a federal court judge to dismiss the disciplinary case against him.
In May, about one week before the primary election, Callaghan had a flier sent out that showed a photo-shopped image of Johnson with President Barack Obama at a party. The flier also stated that while Johnson was present at a White House event, Nicholas County was losing hundreds of jobs.
The ethics charges brought against Callaghan claimed that the fliers were meant to deceive voters into believing that Johnson and Obama were drinking beer and partying at the White House while “conniving with one another to kill coal mining jobs in Nicholas County.”
In a federal lawsuit he filed in October, Callaghan denies that the flier 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.
Callaghan claimed that within hours of the flier being mailed out, Teresa A. Tarr called him and had concluded that the flier, 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.
Johnson’s son filed a formal complaint with the West Virginia Lawyer Disciplinary Board and the West Virginia Judicial Commission on May 16, six days after the election.
According to the board’s recommendations, Callaghan should also pay $15,000 and pay for the cost of the proceedings against him.
State Supreme Court case number 16-0670