In re Callaghan

• Citation: 796 S.E.2d 604
• Decision Date: 09 February 2017
• Docket Number: No. 16-0670,16-0670
• Court: Supreme Court of West Virginia
• Parties: In the MATTER OF: the Honorable Stephen O. CALLAGHAN, Judge-Elect of the Twenty-Eighth Judicial Circuit

796 S.E.2d 604

In the MATTER OF: the Honorable Stephen O. CALLAGHAN, Judge-Elect of the Twenty-Eighth Judicial Circuit

No. 16-0670

Supreme Court of Appeals of West Virginia.

Submitted: January 24, 2017

Filed: February 9, 2017

Teresa Tarr, Esq., Brian Lanham, Esq., Judicial Disciplinary Counsel, Charleston, West Virginia, Attorneys for West Virginia Judicial Investigation Commission.

Lonnie C. Simmons, Esq., DiTrapano, Barrett, DiPiero, McGinley & Simmons, PLLC, Charleston, West Virginia, Attorney for Respondent.

MCHUGH, Acting Chief Justice:

This matter arises from the recommendation of the West Virginia Judicial Hearing Board (hereinafter "the Board") that respondent Stephen O. Callaghan, Judge-Elect of the 28th Judicial Circuit (hereinafter "Judge-Elect Callaghan") be disciplined for three violations of the West Virginia Code of Judicial Conduct and one violation of the West Virginia Rules of Professional Conduct. 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. He objects to the findings and sanctions recommended by the Board and before this Court asserts 1) 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; 2) that the statements are protected by the First Amendment; and 3) that the recommended discipline of a one-year suspension without pay and other sanctions is excessive. Judicial Disciplinary Counsel likewise objects to the recommended discipline, requesting a two-year suspension.

This Court has before it all matters of record, including the stipulations, exhibits and a transcript of the evidentiary hearing conducted by the Board, as well as the briefs and argument of counsel. 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. 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.

I. FACTS AND PROCEDURAL HISTORY

On May 11, 2015, Judge-Elect Callaghan filed pre-candidacy papers to run for Judge of the 28th Judicial Circuit. On November 24 and December 30, 2015, the West Virginia Judicial Investigation Commission ("JIC") sent a letter to all candidates advising them of the applicability of Rule 4.1 of the West Virginia Code of Judicial Conduct, entitled "Political and Campaign Activities of Judges and Judicial Candidates in General." On January 14, 2016, Judge-Elect Callaghan filed his candidacy papers; his opponent was the incumbent Honorable Gary L. Johnson (hereinafter "Judge Johnson").

In late January 2016, upon the advice of his campaign consultant, Brad Heflin of Rainmaker, Inc., Judge-Elect Callaghan commissioned and approved an automated survey, in part, to test the effect of connecting Judge Johnson's attendance at a child trafficking seminar in Washington, D. C. with the loss of coal jobs in Nicholas County, which losses had been widely associated with President Barack Obama's policies.¹ The specific survey question stated: "Gary Johnson is lockstep with Barack Obama's policies. While Nicholas County was losing coal jobs to Obama's policies, Johnson was the only West Virginia judge invited to the Obama White House to participate in a junket highlighting issues of importance to President Obama." The survey then asked the participant to rate whether this statement caused major concern, some concern, no real concern, or "don't know." Approximately 67% of those surveyed responded that this statement caused them "major concern" or "some concern."²

The genesis of the survey question is Judge Johnson's June 2015 attendance at a Court Improvement Program ("CIP") meeting and Child Trafficking Conference in Washington, D. C. As a recipient of three federal CIP grants, the State was required to send a representative for each such grant to the annual CIP Grantee meeting; Judge Johnson was the Chair of the West Virginia CIP. At the same time as the CIP Grantee Meeting, the Federal Administration for Children and Families held a seminar on child trafficking; the agency encouraged the States to send their highest level representatives. In an unrelated occurrence that same month, a press report was issued detailing the loss of 558 coal jobs in Nicholas County between 2011 and 2015.

Following the survey, Judge-Elect Callaghan approved a direct-mail flyer created by Mr. Heflin emblazoned with "photoshopped"³ photographs of President Obama and Judge Johnson, along with the caption "Barack Obama & Gary Johnson Party at the White House...." President Obama is depicted holding what appears to be an alcoholic beverage and party streamers form the background of the photographs. See Exhibit "A" attached to this opinion. The opposing side of the flyer concludes "... While Nicholas County loses hundreds of jobs." The opposing side also contains a mock-up of a "Layoff Notice" which states:

While Nicholas County lost hundreds of jobs to Barack Obama's coal policies, Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama's legislative agenda. That same month, news outlets reported a 76% drop in coal mining employment. Can we trust Judge Gary Johnson to defend Nicholas County against job-killer Barack Obama ?

(emphasis added). The flyer was mailed to voters in Nicholas County on or about May 5, 2016, five days before the May 10, 2016, election, as agreed by Judge-Elect Callaghan and Mr. Heflin.⁴ The flyer was also posted on Judge-Elect Callaghan's personal and campaign Facebook pages.

It is undisputed herein that Judge Johnson was not "invited by" President Obama to attend the CIP meeting and Child Trafficking conference, did not meet President Obama, has never met President Obama, and did not attend a "party" or any social function, much less one involving alcohol, while at the meeting and seminar. It also appears that while conference meetings were held at buildings within the White House compound, Judge Johnson did not actually go to The White House.

Judicial Disciplinary Counsel contacted Judge-Elect Callaghan advising him that the flyer was inappropriate and demanding remediation. The record demonstrates that Nicholas County's only newspaper is published and circulated only on Wednesdays, allowing no opportunity to run an ad addressing the flyer before the following Tuesday's election. Therefore, as a result of these discussions and in an effort to avoid the filing of a judicial ethics complaint,⁵ Judge-Elect Callaghan agreed to remove the flyer from his personal and campaign Facebook pages and run eight local radio ads over a three-day period stating:

If you received a mail advertisement recently from Steve Callaghan, Candidate for Nicholas County Circuit Judge, showing Judge Gary Johnson visiting the White House, please understand that the specific characterization of the White House visit may be inaccurate and misleading and should not have been sent containing the inappropriate information. Candidate Callaghan apologizes for any misunderstanding or inaccuracies ...."

(emphasis added). On May 10, 2016, Judge-Elect Callaghan defeated Judge Johnson by 227 votes.⁶

On July 18, 2016, a Formal Statement of Charges was issued against Judge-Elect Callaghan by the JIC.⁷ On November 29, 2016, after hearing evidence, the Board issued a Recommended Decision pursuant to Rule 4.8 of the West Virginia Rules of Judicial Disciplinary Procedure, finding that he violated Rules 4.1(A)(9), 4.2(A)(1), 4.2(A)(4) of the Code of Judicial Conduct and Rule 8.2(a) of the Rules of Professional Conduct.⁸ Disciplinary Counsel requested a one-year suspension for the Professional Conduct violation and a one-year suspension for the Judicial Code violations to run consecutively , for a total of a two-year suspension. Instead, the Board recommended a one-year suspension without pay for each of the four violations, to run concurrently , as well as censure, reprimand, a $5,000 fine per Judicial Code violation, and payment of costs. Judge-Elect Callaghan filed an objection to the recommended disposition pursuant to Rule of Judicial Disciplinary Procedure 4.11. As a result of the Board's one-year concurrent suspension, Disciplinary Counsel likewise objected to the recommended discipline, reiterating its request that a two-year suspension be ordered.

II. STANDARD OF REVIEW

With respect to discipline for violations of the West Virginia Code of Judicial Conduct, " '[t]he Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings.' Syl. pt. 1, W.Va. Judicial Inquiry Commission v. Dostert , 165 W.Va. 233, 271 S.E.2d 427 (1980)." Syl., Matter of Hey , 193 W.Va. 572, 457 S.E.2d 509 (1995). "The independent evaluation of the Court shall constitute a de novo or plenary review of the record." Matter of Starcher , 202 W.Va. 55, 60, 501 S.E.2d 772, 777 (1998). Moreover, " ' "Under [Rule 4.5 of the West Virginia Rules of Disciplinary Procedure], the allegations of a complaint in a judicial disciplinary proceeding 'must be proved by clear and convincing evidence.' " Syllabus Point 4, In Re Pauley , 173 W.Va. 228, 235, 314 S.E.2d 391, 399 (1983).' Syllabus Point 1, Matter of Hey , 192 W.Va. 221, 452 S.E.2d 24 (1994)." Syl. Pt. 1, Starcher , 202 W.Va. 55, 501 S.E.2d 772.

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