A candidate for the state Supreme Court has lost a federal court case over limits on how judiciary candidates can comment on particular legal issues.
Martin Sheehan is one of five candidates for the unexpired term for a Supreme Court seat with a term ending in 2032. Sheehan, a Wheeling lawyer who ran for Supreme Court in 2018, has been on past ballots with the nickname “Red Shoes” known for wearing red shoes to court. Now he’s listed as Martin “Red Hat” Sheehan.
Two Supreme Court seats will be on West Virginia ballots for the May 12 election.
Sheehan filed suit March 9 in U.S. District Court for the Southern District of West Virginia against the Judicial Investigation Commission of West Virginia, which examines possible ethical violations by judges in the state. He asked for a temporary restraining order.
He challenged two aspects of the West Virginia Code of Judicial Conduct. Those say that a judge or judicial candidate shall not:
- make any statement that could reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court
- make pledges, promises or commitments regarding cases, controversies or issues likely to come before the court that are inconsistent with the impartial performance of duties of judicial office
Sheehan argued that the rules constitute unconstitutional violations of his First Amendment rights to express himself during his Supreme Court campaign.
“Were enforcement of these rules not enjoined, the Plaintiff would suffer a restriction on his ability to communicate with voters before a statewide election to be held in May of 2026,” Sheehan wrote in his complaint.
Noting that violations can result in punishment of admonishment, censure, suspension or other sanctions, he wrote, “The plaintiff should not have to face the risk of any sanction for exercising a well-established First Amendment right to campaign free of the threat of any such sanction.”
In an accompanying memorandum, Sheehan wrote of himself, “He is under a threat of sanctions identified above for engaging in what would appear to be protected speech.”
In response, the Judicial Investigation Commission said there were no allegations against Red Shoes to prompt the federal case.
“Plaintiff has not alleged the WVJIC is investigating alleged violations of Code against the Plaintiff. Because it is not,” wrote attorneys for the commission. “Nor does Plaintiff allege the WVJIC is bringing an enforcement action against him. Again, it is not.
“Plaintiff also does not allege that he sought advice from the WVJIC regarding the code and that advice led him to believe the challenged Rules violated his First Amendment rights. Because he did not. In fact, no one at the WVJIC even spoke with the Plaintiff prior to this lawsuit.”
Overall, the commission opposed the motion, saying the rules are narrowly tailored to protect the state’s compelling interest in an impartial judiciary.
The parties gathered March 26 in federal court in Charleston to make their cases in a motion hearing.
U.S. District Judge Thomas Johnston this week ruled against Red Shoes. Johnston issued an order denying the motion for a temporary restraining order and/or a preliminary or permanent injunction.
In a footnote, the judge observed that the initial filings were absent of “any express contention by Plaintiff that he actually desires to engage in speech prohibited by Rule 4.1 of the Code.”
The judge then acknowledged in the footnote that “Nevertheless, Plaintiff finally made this desire known at the March 25, 2026, motion hearing.”
The judge found that West Virginia’s rules are narrowly tailored and only prohibited a “narrow slice” of speech, such as pledges to reach a specific result in a case, while still allowing candidates to express personal views on legal and political issues.