SUMMERSVILLE, W.Va. — The State Supreme Court of Appeals will hear a case in January that could lead to a year-long suspension for a newly elected Nicholas County Circuit Court judge.
Judge-elect Stephen O. Callaghan, a lawyer based in Summersville, defeated long-time 28th Circuit Court Judge Gary Johnson by just 227 votes during the May election of non-partisan judicial officers.
Callaghan is set to be inaugurated during the first week of January, but could face a year-long suspension from his position following a recommendation by the Judicial Hearing Board of West Virginia.
The committee offered a unanimous opinion that Callaghan’s campaign actions violated the Code of Judicial Conduct and the Rules of Professional Conduct when his campaign mailed a flyer to voters suggesting that incumbent Judge Gary Johnson had “partied with Obama” while “Nicholas County lost hundreds of jobs to Barack Obama’s coal policies.”
The flyer, as seen above, is two pages. The original complaint argues that the flyer was duplicitious in that it intended to connect Judge Gary Johnson–who’s job is to enforce and interpret the law–with the climate and environmental policies of President Barack Obama.
Charleston-based attorney Lonnie Simmons represented Mr. Callaghan during the board’s review and will represent Callaghan in front of the State Supreme Court of Appeals in January.
“You can still express opinions,” he said Wednesday morning on MetroNews “Talkline” with Hoppy Kercheval. “That’s protected. You can use parody, which is what happened here. You don’t take it literally that Judge Johnson literally had a party with President Obama. That was clearly parody.”
“That, in and of itself, demonstrated that’s part of the humor, that’s part of the parody of it. It’s just an opinion, and that’s all that’s protected.”
In their unanimous ruling, the Judicial Hearing Board clearly disagreed that the flyer was parody. They described a number of the statements contained within the flyer as “materially false and misleading” and “made knowingly and/or with reckless disregard for for its truth as Respondent had no facts upon which to base this statement…”
“Something could be truthful but still be misleading,” Simmons said. “That would be a violation of the First Amendment. The Judicial Hearing Board actually agreed with that. We just aren’t going to know what the rules of the game actually are until the State Supreme Court actually tell us.”
The “rules of the game” present a complicated legal question: do some of the Judicial Hearing Board’s interpretation of the Code of Judicial Conduct and Code of Professional Conduct violate Constitutionally-protected rights for office-holders and office-seekers?
“We’re not really going to know what rules are valid or not until the State Supreme Court issues some kind of an opinion,” Simmons said.
In their ruling, the Judicial Hearing Board found that the connection between Gary Johnson’s 2015 visit to Washington D.C. for a conference and seminar on child sex trafficking and the climate policies of President Obama leading to job loss in Nicholas County were “wholly unrelated.”
Of course, political speech–no matter how false–is Constitutionally protected. The issue at hand is whether or not Judge-Elect Callaghan violated conduct policies. Additionally, determining whether the flyer is asserting “statements of fact” or “expressions of opinion” makes a significant different as to whether the flyer did or did not violate any conduct rules.
The “Obama flyer” was mailed to voters on May 5. Disciplinary Counsel contacted Callaghan and said the flyer could constitute a violation of Code of Conduct and recommended a number of steps to avoid Counsel filing with the Judicial Hearing Board.
Callaghan promptly removed the flyer from his Facebook page and ran a series of radio ads between May 7 and May 9 about accidental mischaracterizations of Judge Johnson in the flyer.
However, Counsel informed Callaghan that the Board would listen if anyone else filed a disciplinary complaint.
The State Supreme Court will hear oral arguments on January 10, but already have rejected a motion that would stop Callaghan from taking office before the scheduled argument.
“There’s nothing in place at this point that prevents him from taking the oath in January of 2017,” Simmons said. “The Nicholas County voters put him in office, and he has every intention of doing that.”
Nicholas Johnson, a lawyer at Bailey & Glasser and the son of Judge Gary Johnson, filed the original complaint with the review board against Judge-elect Callaghan on May 26, 2016.
Nicholas Johnson asserts that his father has never met President Obama–nor was he invited to the White House at the President’s request to “support his legislative agenda” as the flyer states.
The Judicial Hearing Board agreed with the younger Johnson’s filing in that regard.
The senior Judge Gary Johnson did attend the annual National Court Improvement Program conference in Washington D.C. in June 2015. Concurrently, he attended seminar on child sex trafficking that lasted two days.
According to the Judicial Hearing Board’s ruling, Judge Johnson chairs the West Virginia Court Improvement Program. As such, at least three members of that committee are required to attend the national conference to maintain federal grant status.
Testimony to the board indicated that President Obama did not attend the conference, which was located in an adjacent building, or any of it’s related events.
Nicholas Johnson released the following statement to MetroNews.
“Judge Johnson has made it a personal mission of his during his time on the bench to do all he can to protect the most vulnerable children from violence and abuse, and to find them safe, healthy situations and an opportunity to achieve. I have personally witnessed him lose sleep, devote extra time, and go over-and-above to help neglected and abused children by doing things like serving as chair of the Court Improvement Board, for no extra compensation. So, to me, the most troubling thing about the Obama flyer was that it took Judge Johnson’s very important and meaningful work on preventing child abuse, on both a state and national level and falsely claimed that Judge Johnson was at a party with President Obama to celebrate the loss of coal mining jobs. All the circuit judges in West Virginia have really, really hard and important jobs, especially in terms of the protection of children and families, and I am pleased that the Judicial Hearing Board has denounced the denigration of the office of Circuit Judge.”
Nicholas County Circuit Clerk Debbie Facemire said the county has “mostly been left in the dark,” but suspects that a Senior Status Judge would be appointed if the Judicial Hearing Board’s recommendation to suspend Judge-Elect Callaghan is accepted by the State Supreme Court of Appeals.
In addition to a suspension on the bench, Judge-Elect Callaghan would also be barred from practicing law for one year, pay a fine, and pay for the cost of the court proceedings, pending the acceptance of the Judicial Hearing Board’s recommendation.
Simmons filed a separate motion in Federal Court to challenge the Constitutionality of the rules that govern the Code of Judicial Conduct and the Code of Professional Conduct that governs how judicial officers campaign.
“At the moment, the District Court is being kept apprised of the actions in State court, but has not taken any affirmative action,” Simmons said in an e-mail response.
Read the Judicial Hearing Board’s full 42-page opinion here.
Read the State Supreme Court’s order, issued today, here.