CHARLESTON – Nicholas Circuit Judge Stephen O. Callaghan has been suspended for two years by the West Virginia Supreme Court of Appeals.
Senior Status Justice Thomas E. McHugh and Judges Robert A. Waters, James A. Matish, Charles Carl III and Joanna Tabit sat by temporary assignment in place of Justices Allen Loughry, Robin Jean Davis, Margaret Workman, Menis Ketchum and Beth Walker, who deemed themselves disqualified and did not participate in the decision.
McHugh delivered the majority opinion. Matish authored a separate opinion where in concurred in part and dissented in part.
Callaghan was to be disciplined for three violations of the West Virginia Code of Judicial Conduct and one violation of the West Virginia Rules of Professional Conduct, according to the Feb. 9 opinion.
“These violations stem from allegedly false statements contained in a campaign-issued flyer disseminated while judge-elect Callaghan was a candidate for Judge of the 28th Judicial Circuit,” the opinion states.
The flyer implied longtime Nicholas Circuit Judge Gary Johnson was partying at the White House with President Barack Obama. The flyer also stated that while Johnson was present at a White House event, Nicholas County was losing hundreds of jobs. Callaghan defeated Johnson by 220 votes.
Callaghan objected to the findings and sanctions recommended by the state Judicial Hearing Board and asserted that neither Judicial Disciplinary Counsel nor the Board had jurisdiction to prosecute and hear the charges asserted against him since he was not a judge at the time of the alleged violations; that the statements are protected by the First Amendment; and that the recommended discipline of a one-year suspension without pay and other sanctions is excessive.
Judicial Disciplinary Counsel objected to the recommended discipline and requested a two-year suspension.
“Based on this Court’s independent review of the record, we find that clear and convincing evidence of improper conduct has been presented in support of each of the violations found by the Board and that Judge-Elect Callaghan’s constitutional arguments afford him no relief,” the majority opinion states. “Further, we adopt the Board’s recommended discipline, with modification, and find that, under the unique circumstances presented herein, it is appropriate to suspend Judge-Elect Callaghan from the judicial bench for a total of two years without pay, along with the recommended fine of $15,000.00, and reprimand as an attorney. The Court further directs Judge-Elect Callaghan to pay the costs of the proceedings.”
The ethics charges brought against Callaghan claimed that the flyer was 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.”
Callaghan denied 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.
Callaghan claimed that within hours of the flyer being mailed out, Teresa A. 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.
Johnson’s son filed a formal complaint with the West Virginia Lawyer Disciplinary Board and the West Virginia Judicial Commission on May 16.
On July 18, a formal statement of charges was issued by the Judicial Investigation Commission and, after hearing the evidence, the Board issued a recommended decision in November.
“Judge-elect Callaghan’s conduct violated fundamental and solemn principles regarding the integrity of the judiciary,” the majority opinion states. “His egregious behavior warrants substantial discipline.”
In his separate opinion, Matish wrote that the majority considers the recommendation of the Judicial Hearing Board of two concurrent one-year periods of suspension without pay to be too lenient, instead ordering two consecutive one-year suspensions without pay to be imposed, plus a $15,000 fine, costs and a public reprimand.
“While I concur with the majority’s reasoning as to the seriousness of this matter, I respectfully disagree as to the length of the suspension,” Matish wrote. “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.”
The falsity used by Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County.
“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,” Matish wrote.
Matish wrote that he would have given Callaghan a one-year suspension as an attorney, followed by a year for each violation of the Code of Judicial Conduct for a total suspension of four years.
W.Va. Supreme Court of Appeals case number: 16-0670