In the Matter Of: The Hon. Stephen O. Callaghan, Judge-Elect of the 28th Circuit
238 W. Va. 495
| W. Va. | 2017Background
- Callaghan, a lawyer and successful candidate for 28th Judicial Circuit judge, approved and distributed a May 2016 campaign flyer depicting a photoshopped image of President Obama and opponent Judge Gary Johnson with captions implying Johnson was invited to and "partied" at the White House while Nicholas County lost coal jobs. The flyer was mailed days before the election and posted on Facebook.
- Johnson did attend a federally-required Court Improvement Program meeting and child-trafficking seminar in D.C., but he was not invited by, did not meet, nor "party" with President Obama; he did not actually go into the White House in any meaningful social sense.
- The Judicial Investigation Commission charged Callaghan with violations of Code of Judicial Conduct Rules 4.1(A)(9), 4.2(A)(1), 4.2(A)(4), and Rule of Professional Conduct 8.2(a) for knowingly or recklessly making false statements about a judicial candidate and failing to prevent others from doing so on his behalf.
- The Judicial Hearing Board found clear and convincing evidence of those violations and recommended censure, concurrent one-year suspensions without pay, fines, and costs; Disciplinary Counsel sought consecutive suspensions totaling two years.
- The West Virginia Supreme Court (McHugh, A.C.J.) held the Board and Disciplinary Counsel have jurisdiction over non‑incumbent judicial candidates; it rejected Callaghan’s First Amendment and other challenges, found the flyer materially false (not protected hyperbole/parody), and imposed discipline: two-year suspension without pay (for the three Code violations, running consecutively as modified), $5,000 fine per Code violation ($15,000 total), reprimand under Rule 8.2(a), and payment of costs.
Issues
| Issue | Callaghan's Argument | Judicial Disciplinary Counsel / Board Argument | Held |
|---|---|---|---|
| Jurisdiction to discipline a non‑incumbent judicial candidate | Rules of Judicial Disciplinary Procedure refer only to "judges," so Board/D Counsel lack authority over non‑incumbent candidates | Code of Judicial Conduct expressly applies to "judicial candidates"; procedural rules are mechanisms that do not defeat substantive jurisdiction | Board and Disciplinary Counsel have authority to investigate and discipline judicial candidates under the Code (jurisdiction upheld) |
| First Amendment facial challenge to prohibitions on knowingly/recklessly false statements by judicial candidates (Rule 4.1(A)(9) and RPC 8.2(a)) | The rules unconstitutionally restrict protected campaign speech | State has a compelling interest in preserving judicial integrity; narrowly tailored prohibition (knowledge/reckless standard) is permissible | Rules are facially constitutional as they prohibit only knowingly or recklessly false statements and serve a compelling interest |
| First Amendment as‑applied challenge (was the flyer protected as truth, substantial truth, parody, or rhetorical hyperbole?) | Flyer was substantially/objectively true or rhetorical/parody; statements were juxtaposition/implication, not literal falsehoods | Flyer conveyed a materially false "gist" that Judge Johnson was invited by and socialized with Obama; not mere hyperbole; falsity shown by record | Flyer was materially false in substance (not protected); Callaghan violated Rules 4.1(A)(9), 4.2(A)(1), 4.2(A)(4), and RPC 8.2(a) |
| Appropriate discipline | Board’s concurrent one‑year suspensions and sanctions were excessive (Callaghan sought mitigation) | Conduct directly undermined public confidence; aggravating factors (timing, strategy, misleading voters) support significant sanction; Disciplinary Counsel sought consecutive two years | Court imposed two‑year suspension without pay (for Code violations), $15,000 total fine, reprimand under RPC 8.2(a), and costs; suspension intended as deterrent and institutional protection |
Key Cases Cited
- Williams‑Yulee v. The Fla. Bar, 135 S. Ct. 1656 (2015) (States may impose stricter regulation on judicial candidates’ speech to protect judicial integrity)
- Masson v. New Yorker Magazine, 501 U.S. 496 (1991) (falsity assessed by the communication’s substance, "gist," or "sting")
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (false statements of fact are not protected; higher proof standards for public‑figure defamation to avoid chilling truthful speech)
- Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016) (upholding a false‑statement ban identically worded to Rule 4.1(A)(9) as narrowly tailored)
- In re Renke, 933 So. 2d 482 (Fla. 2006) (successful judicial candidate removed for knowingly making material misrepresentations in campaign literature)
- In re Watkins, 233 W. Va. 170 (2013) (suspension authority and importance of protecting public confidence in judiciary)