The West Virginia Supreme Court of Appeals (reconstituted due to multiple recusals) has suspended a recently-elected judge for his false campaign flyer
Judge-Elect Callaghan approved a direct-mail flyer created by Mr. Heflin emblazoned with “photoshopped” 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...
Distilled to its essence, the ultimate question presented to this Court is whether the flyer is “false” and therefore stripped of First Amendment protection, or, as Judge-Elect Callaghan insists, merely the juxtaposition of two attenuated occurrences— coal job losses in Nicholas County and Judge Johnson’s attendance at a federal seminar in Washington, which was “hyperbolized” as “partying” at the White House. We conclude that the “gist” of the subject flyer conveys that Judge Johnson “partied with Obama” at his personal invitation and is therefore simply too far afield from the truth to be considered protected, hyperbolic free speech; it is, in every sense, materially false. Judge Johnson attended a federally-required meeting and conference in furtherance of his service to the State, which meeting and conference was utterly devoid of any meaningful connection to or interaction with the President. Judge Johnson’s attendance at the meeting and conference is exaggerated, repurposed and mischaracterized to the point that it is rendered patently untrue. When viewed in its entirety as instructed by various courts, we have little difficulty finding that the subject flyer contains knowingly, materially false statements in violation of the Code of Judicial Conduct and the Rules of Professional Conduct.
We therefore conclude that the First Amendment does not serve to shield Judge-Elect Callaghan from discipline as a result of the subject flyer. We further conclude, as did the Board, that the subject flyer contains a knowingly false statement and that Judge-Elect Callaghan’s actions in approving and disseminating the flyer are therefore violative of Rule 4.1(A)(9), Rule 4.2(A)(1), Rule 4.2(A)(4) of the Code of Judicial Conduct and Rule 8.2(a) of the West Virginia Rules of Professional Conduct.
Majority on sanction
With regard to his attempts at corrective measures and his level of regret, however, we find that although he removed the false assertions from his personal and campaign Facebook pages and ran radio advertisements ostensibly retracting the assertions contained in the flyer, the calculated and intentional timing of his mailings rendered it virtually impossible to engage in meaningful mitigation. As Judge Johnson testified, time constraints prevented him from taking meaningful action in response to the distribution of the flyer. Nicholas County’s only newspaper was a weekly paper, and the timing of the mailing prevented inclusion of any response or countermeasure in that paper. Thus, we find that the removal of the assertions from social media and the radio statements are entitled to limited weight in mitigation...
Judge-Elect Callaghan’s subsequent statements during his testimony continued to reveal a dismissive and cavalier attitude toward his behavior. He stated, “If I had to do it again, I probably would not approve the flier going out just because it’s not enjoyable - politics is not enjoyable in a lot of different ways, but when you cause outrage in somebody, that, I regret.” Moreover, his written response to the initial complaint disingenuously urges that “[s]ome members of the public may have been duly impressed by the fact that Judge Johnson was honored by the White House for the good works he had performed[.]” He further suggested that Judge Johnson could have “easily . . . boycotted this meeting, based upon his disagreement with President Obama’s policies, and he could have publicized such a boycott for political purposes.” In his testimony before the Board, Judge-Elect Callaghan minimized his conduct...
There is an opinion concurring in part by Judge Matish
The majority considers the recommendation of the Judicial Hearing Board of two concurrent one-year periods of suspension without pay to be too lenient, instead ordering two consecutive one-year suspensions without pay be imposed, plus a $15,000 fine, costs, and a public reprimand. While I concur with the majority’s reasoning as to the seriousness of this matter, I respectfully disagree as to the length of the suspension. The entire circumstance merits additional charges and punishment because, after reviewing the record presented and hearing oral argument, it is my opinion that the punishment is still not severe enough, because of the numerous violations that occurred with the so-called Obama flyer alone.
...the majority could have just as easily found violations for each untruthful statement of the so-called “Obama flyer,” which included: (1) the photoshopped pictures of President Obama and Judge Gary Johnson with the beer, since there was no party attended with President Obama where alcohol was served; (2) that Judge Johnson was not invited by the President; (3) that President Obama was not even present;( 4 ) that Judge Johnson did not go to the White House; and (5) none of this had anything to do with Judge Johnson defending jobs in Nicholas County. Each of these violations, having occurred in the so-called “Obama flyer” that was mailed to the voters and having been placed upon two separate Facebook posts, would amount to a multiplier of, at a minimum, three separate postings or publications, for a minimum of fifteen violations, in and of itself, justifying as much as a fifteen-year suspension.
...As a country, we have gone far astray from what is right and what is good. We have become the most connected nation with our cell phones, smart phones, tablets, computers, and social media, while simultaneously becoming the most disconnected nation because of our cell phones, smart phones, tablets, computers, and social media. In trying to one up the next guy at his expense, we fail to realize that we harm ourselves in the process. Once you hit “Send,” it is out there forever, and you cannot take it back.
As a judge or judicial candidate, you are expected to have a standard to live up to, not only in your personal life and how you conduct yourself on the bench, but how you run a campaign to secure the trust of the public in voting to elect you. It is disturbing to me that Judge-elect Callaghan admitted to reading the Code of Judicial Conduct when he decided to run. However, the Code of Judicial Conduct was later changed and adopted December 1, 2015, yet Judge-elect Callaghan, in his testimony, never admitted to stating specifically that he read the new Code of Judicial Conduct nor talked about any Code of Judicial Conduct to the media company he hired. Also, the media company admitted to not having talked with Judge-elect Callaghan about it either.
The falsity used by Judge-elect Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County, the 28th Judicial Circuit. By his own actions, he has shown that he is unfit to hold a judicial office, and, at the appropriate time, a new election should be held.
Judge-elect Callaghan may very well have won the election fair and square based upon other factors in Nicholas County, or the fact he pointed to in one of his other flyers that after a certain amount of time, things need changed, but instead he resorted to certain falsities, which definitely are not to be tolerated in a judicial election. We may now live in a world of “fake news” and “alternate facts,” but if we cannot trust, honor, and respect our Judges and Justices, who can we trust?
Since Judge-elect Callaghan was first an attorney running for a judicial office, I would give him a one-year suspension as an attorney, followed by a year for each violation of the Code of Judicial Conduct, for a total suspension of four years. However, the possibility exists under the facts of this case that the suspension could be for much longer, as stated above. Therefore, I respectfully dissent as to the length of punishment, and would order Judge-elect Callaghan to serve four one-year consecutive periods of suspension from the bench, without pay, in addition to the fines and costs imposed by the majority.
MetroNews - the voice of West Virginia - has the story and the flyer. (Mike Frisch)
February 10, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink
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