U.S. Supreme Court refuses to hear appeal from Nicholas County judge

By Kyla Asbury | Oct 4, 2017

CHARLESTON – The U.S. Supreme Court has declined to hear the appeal of Nicholas Circuit Court Judge Stephen O. Callaghan.

On Sept. 25, the Supreme Court, the Supreme Court justices considered hearing arguments. They denied the petition on Oct. 2.

The case was docketed in July. In August, briefs were filed by the West Virginia Judicial Investigation Commission, the First Amendment Coalition and Callaghan.

The West Virginia Supreme Court of Appeals suspended Callaghan for two years without pay back in February for the controversial political flyer his campaign used during the 2016 judicial election. They also imposed a $15,000 fine and costs of the proceedings against him.


The flyer said that Callaghan’s opponent, Gary Johnson, who had been a Nicholas County judge for 23 years, was at a party at the White House with President Barack Obama.

After the election, in which Callaghan defeated Johnson by 220 votes, Johnson’s son filed an ethics complaint against Callaghan claiming he violated the Judicial Code of Conduct

Callaghan claimed that the West Virginia Judicial Disciplinary Counsel did not have the jurisdiction to prosecute and hear charges against him because he was not a judge at the time of the alleged violations. He also claimed the flyer was protected by the First Amendment.

The WVJIC claimed 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. The advertisement came out just days before the election.

The Judicial Disciplinary Counsel contacted Callaghan, telling him the ad was inappropriate. He then removed the flyer from his personal and campaign Facebook pages, and he ran eight ads on local radio during a three-day period prior to the election saying the characterization of Johnson’s White House visit “may be inaccurate and misleading and should not have been sent containing the inappropriate information.”

It was determined that while Johnson attended a conference at the White House in 2015 on ways to stop child trafficking, Obama was not in attendance and the two had never met.

“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 state Supreme Court opinion said.

Callaghan was represented by Lawrence D. Rosenberg and David Rosenberg of Jones Day.

The WVJIC was represented by Teresa A. Tarr.

U.S. Supreme Court case number: 17-54

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