In the Matter Of: The Hon. Stephen O. Callaghan, Judge-Elect of the 28th Circuit , 238 W. Va. 495 ( 2017 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
February 9, 2017
No. 16-0670 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In the Matter Of:
THE HONORABLE STEPHEN O. CALLAGHAN,
JUDGE-ELECT OF THE TWENTY-EIGHTH JUDICIAL CIRCUIT
DISCIPLINARY PROCEEDING
SUSPENDED WITHOUT PAY
AND OTHER SANCTIONS
Submitted: January 24, 2017
Filed: February 9, 2017
Teresa Tarr, Esq. Lonnie C. Simmons, Esq.
Brian Lanham, Esq. DiTrapano, Barrett, DiPiero, McGinley
Judicial Disciplinary Counsel & Simmons, PLLC
Charleston, West Virginia Charleston, West Virginia
Attorneys for West Virginia Judicial Attorney for Respondent
Investigation Commission
ACTING CHIEF JUSTICE THOMAS E. MCHUGH delivered the Opinion of the Court.
JUDGE MATISH concurs in part and dissents in part and reserves the right to file a
separate opinion.
CHIEF JUSTICE LOUGHRY, JUSTICE DAVIS, JUSTICE WORKMAN, JUSTICE
KETCHUM, and JUSTICE WALKER, deeming themselves disqualified, did not
participate in the decision of this case.
SENIOR STATUS JUSTICE THOMAS E. MCHUGH, JUDGE ROBERT A. WATERS,
JUDGE JAMES A. MATISH, JUDGE H. CHARLES CARL, III, and JUDGE JOANNA
I. TABIT, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “‘The 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).
2. “‘“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, Matter of Starcher, 202 W. Va. 55, 501 S.E.2d 772
(1998).
3. “This Court is the final arbiter of legal ethics problems and must
make the ultimate decisions about public reprimands, suspensions or annulments of
attorneys’ licenses to practice law.” Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174
W.Va. 494, 327 S.E.2d 671 (1984), cert denied, 470 U.S. 1028, 105 S. Ct. 1395, 84
L. Ed. 2d 783 (1985).
4. “The purpose of judicial disciplinary proceedings is the preservation
and enhancement of public confidence in the honor, integrity, dignity, and efficiency of
i
the members of the judiciary and the system of justice.” Syl., In the Matter of Gorby, 176
W.Va. 16, 339 S.E.2d 702 (1985).
5. The provisions of the West Virginia Rules of Judicial Disciplinary
Procedure are applicable in their entirety to “judicial candidates” as defined in the West
Virginia Code of Judicial Conduct, and permit the exercise of authority over said
candidates for all purposes articulated therein.
6. “The West Virginia Constitution confers on the West Virginia
Supreme Court of Appeals, both expressly and by necessary implication, the power to
protect the integrity of the judicial branch of government and the duty to regulate the
political activities of all judicial officers.” Syl. Pt. 6, State ex rel. Carenbauer v. Hechler,
208 W. Va. 584, 542 S.E.2d 405 (2000).
7. Insofar as West Virginia Code of Judicial Conduct Rule 4.1(A)(9)
and West Virginia Rule of Professional Conduct 8.2(a) prohibit lawyers, judges and
judicial candidates from knowingly, or with reckless disregard for the truth, making a
false statement as more fully proscribed therein, they are facially constitutional under the
First Amendment to the United States Constitution.
8. “The law . . . takes but one approach to the question of falsity,
regardless of the form of the communication. It overlooks minor inaccuracies and
ii
concentrates upon substantial truth. Minor inaccuracies do not amount to falsity so long
as the substance, the gist, the sting, of the [] charge be justified. A statement is not
considered false unless it would have a different effect on the mind of the reader from
that which the pleaded truth would have produced.” Syl. Pt. 4, in part, State ex rel.
Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548 (1996).
9. “This Court has the inherent power to inquire into the conduct of
justices, judges and magistrates, and to impose any disciplinary measures short of
impeachment that it deems necessary to preserve and enhance public confidence in the
judiciary.” Syl. Pt. 8, In re Watkins, 233 W.Va. 170, 757 S.E.2d 594 (2013).
10. “[I]t is clearly within this Court’s power and discretion to impose
multiple sanctions against any justice, judge or magistrate for separate and distinct
violations of the Code of Judicial Conduct and to order that such sanctions be imposed
consecutively.” Syl. Pt. 7, in part, In re Watkins, 233 W.Va. 170, 757 S.E.2d 594 (2013).
11. “Pursuant to article VIII, section 8 of the West Virginia Constitution,
this Court has the inherent and express authority to ‘prescribe, adopt, promulgate and
amend rules prescribing a judicial code of ethics, and a code of regulations and standards
of conduct and performances for justices, judges and magistrates, along with sanctions
and penalties for any violation thereof[.]’” Syl. Pt. 5, Comm. On Legal Ethics v. Karl,
192 W.Va. 23, 449 S.E.2d 277 (1994).
iii
12. “Always mindful of the primary consideration of protecting the
honor, integrity, dignity, and efficiency of the judiciary and the justice system, this Court,
in determining whether to suspend a judicial officer with or without pay, should consider
various factors, including, but not limited to, (1) whether the charges of misconduct are
directly related to the administration of justice or the public’s perception of the
administration of justice, (2) whether the circumstances underlying the charges of
misconduct are entirely personal in nature or whether they relate to the judicial officer’s
public persona, (3) whether the charges of misconduct involve violence or a callous
disregard for our system of justice, (4) whether the judicial officer has been criminally
indicted, and (5) any mitigating or compounding factors which might exist.” Syl. Pt. 3,
In re Cruickshanks, 220 W.Va. 513, 648 S.E.2d 19 (2007).
iv
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
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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
2
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
1
A 2015 Gallup poll revealed that President Obama had a 72% disapproval rating
in West Virginia. See http://www.gallup.com/poll/189002/obama-rated-best-hawaii-
2015-worst-west-virginia.aspx (last visited February 8, 2017). As stated in his response
to the Statement of Charges: “To the extent some citizens of Nicholas County may have
the opinion that any association between Judge Johnson and President Obama is
completely unacceptable, regardless of the circumstances, Mr. Callaghan sought to create
advertising consistent with that opinion. . . .” (emphasis in original).
2
The polling results submitted into evidence demonstrate that when asked which
candidate they were likely to vote for both before and after this statement, the number of
individuals indicating they would likely vote for Judge Johnson was reduced by
approximately 9%. Judge-Elect Callaghan’s ultimate margin of victory against Judge
Johnson was 3.38%. See n.6, infra.
3
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
3
This was the term utilized by Mr. Heflin during his testimony before the Board.
4
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.
Upon receipt of the subject flyer, Judge Johnson notified Judge-Elect
Callaghan of his objection to the flyer and demanded that he take action to counter-act
the effect of the flyer. Judicial Disciplinary Counsel contacted Judge-Elect Callaghan as
well, further 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 by Judge Johnson or Judicial
4
In addition to this flyer, Judge-Elect Callaghan also sent four additional flyers on
various topics such as drug abuse, drug court, and a “teen court.” See infra.
5
Disciplinary Counsel, 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
5
Both Judicial Disciplinary Counsel and Judge Johnson indicated to Judge-Elect
Callaghan that this action would be sufficient to deter either of them from filing or
initiating a judicial complaint. The complaint filed in this matter was ultimately filed by
Judge Johnson’s son, Nicholas Johnson.
6
Out of 6,717 votes cast, Judge-Elect Callaghan received 3,472 and Judge
Johnson received 3,245.
7
Judge-Elect Callaghan was originally charged under a single count with eight
separate violations: Rule 4.1(A)(9) and (B), Rule 4.2(A)(1), (3), (4) and (5) of the West
Virginia Code of Judicial Conduct (2015), as well as Rule 8.2(a) and (b) of the West
Virginia Rules of Professional Conduct (2015). Judicial Disciplinary Counsel later
voluntarily dismissed the violation of Rule 4.2(A)(3), requiring a candidate to review and
approve all campaign statements and materials inasmuch as Judge-Elect Callaghan
admitted he reviewed and approved the subject flyer.
6
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.
8
With respect to the remaining charged violations, the Board found that there was
not clear and convincing evidence that Judge-Elect Callaghan violated Rule 4.2(A)(5) of
the Code of Judicial Conduct, which requires a candidate to “take corrective action if he
or she learns of any misrepresentations made in his or her campaign statements or
materials.” The Board found that his attempts “however feeble” to rectify the “inaccurate
and misleading” characterizations in the flyer precluded a finding that he violated this
Rule. In addition, the Board found a separate charge under Rule 8.2(b) of the Rules of
Professional Conduct requiring a lawyer who is a judicial candidate to comply with the
Code of Judicial Conduct to be redundant and therefore made no finding in that regard.
The Board further found that the language of Rule 4.1(B) of the Code of Judicial Conduct
requiring a candidate to “take reasonable measures” to ensure that others do not
undertake prohibited activities to be duplicative of the language contained in Rule
4.2(A)(4) containing a similar requirement and therefore made findings only on the latter
charge.
7
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.
Likewise, with respect to lawyer disciplinary matters, “[t]his Court is the
final arbiter of legal ethics problems and must make the ultimate decisions about public
reprimands, suspensions or annulments of attorneys’ licenses to practice law.” Syl. Pt. 3,
Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert denied, 470
U.S. 1028, 105 S. Ct. 1395, 84 L. Ed. 2d 783 (1985). A de novo standard similarly
applies. Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377
(1994).
8
Moreover, insofar as Judge-Elect Callaghan challenges the
constitutionality, both facially and as-applied, of the Rules which he was charged with
violating, our review is plenary. “Constitutional challenges . . . are reviewed pursuant to
a de novo standard of review.” In re FELA Asbestos Cases, 222 W. Va. 512, 514, 665
S.E.2d 687, 689 (2008). Standards for imposition of discipline are discussed in greater
detail, infra. Therefore, with these standards in mind, we proceed to the substance of the
presented objections.
III. DISCUSSION
The Board found that Judge-Elect Callaghan violated the following
provisions of the West Virginia Code of Judicial Conduct:
Rule 4.1(A)(9): “. . . [A] judge or a judicial candidate shall
not . . . knowingly, or with reckless disregard for the truth,
make any false or misleading statement[.]”
Rule 4.2(A)(1): “A judge or candidate subject to public
election shall . . . act at all times in a manner consistent with
the independence, integrity, and impartiality of the
judiciary[.]”
Rule 4.2(A)(4): “A judge or candidate subject to public
election shall . . . take reasonable measures to ensure that
other persons do not undertake on behalf of the candidate
activities . . . that the candidate is prohibited from doing by
Rule 4.1[.]”
and the following provision of the West Virginia Rules of Professional Conduct:
Rule 8.2(a): “A lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a
judge, adjudicatory officer or public legal officer, or of a
9
candidate for election or appointment to judicial or legal
office.”
Judge-Elect Callaghan raises three objections to the Board’s recommended decision, as
follows: 1) Judicial Disciplinary Counsel has no authority to prosecute, nor does the
Board have jurisdiction to hear, matters involving a judicial candidate who is not a
“judge” because the Rules of Judicial Disciplinary Procedure make no reference to
“judicial candidates”; 2) the language in the subject flyer was speech protected by the
First Amendment either because it is objectively or substantially true and/or rhetorical
hyperbole or parody; and 3) the recommended discipline is excessive. We begin, as we
must, with Judge-Elect Callaghan’s jurisdictional challenge to Judicial Disciplinary
Counsel’s prosecution of the charges against him and the Board’s authority to hear such
charges and recommend discipline.
A. Jurisdiction of the Board and Judicial Disciplinary Counsel
The West Virginia Code of Judicial Conduct contains provisions expressly
applicable to judicial candidates. See W. Va. Code of Jud. Cond., Application, Section
I(B) (“All judicial candidates for judicial office shall comply with the applicable
provisions of this Code.” (emphasis added)); Preamble (“The West Virginia Code of
Judicial Conduct establishes standards for the ethical conduct of judges and judicial
candidates.” (emphasis added)). In fact, Canon 4 deals exclusively with campaign
activity by judges and “candidates.” Rules 4.1 and 4.2 contain general prohibitions and
affirmative obligations relative to “Political and Campaign Activities of Judges and
10
Judicial Candidates.” (emphasis added). The remaining Rules within this Canon deal
with activities of candidates for appointive judicial office, candidates for non-judicial
office, and campaign committees. See Rules 4.3, 4.4, and 4.5. As indicated above, each
of the Judicial Rule violations found by the Board expressly applies to “judicial
candidates.” Judge-Elect Callaghan does not dispute that he qualifies as a “judicial
candidate” as defined by the Code of Judicial Conduct,9 nor does he dispute that the Code
properly governs the conduct of judicial candidates.
Rather, he argues that because the West Virginia Rules of Judicial
Disciplinary Procedure make no express reference to “judicial candidates” and refer only
to “judges” in outlining the disciplinary procedures, neither Judicial Disciplinary Counsel
nor the Board have “jurisdiction” to prosecute and hear charges against a judicial
candidate who is not a judge. Noting the absence of any reference in the entire collection
of procedural rules to “judicial candidate,” he specifically highlights the reference to and
9
The Terminology section of the Code of Judicial Conduct defines “judicial
candidate” as:
any person, including a sitting judge, who is seeking selection
for or retention in judicial office by election or appointment.
A person becomes a candidate for judicial office as soon as he
or she makes a public announcement of candidacy, declares
or files as a candidate with the election or appointment
authority, authorizes or, where permitted, engages in
solicitation or acceptance of contributions or support, or is
nominated for election or appointment to office.
11
definition of “judge” contained in Rule of Judicial Disciplinary Procedure 2, which
states:
Any person may file a complaint against a “judge” with the
Office of Disciplinary Counsel regarding a violation of the
Code of Judicial Conduct. The term “judge” is defined in the
Code of Judicial Conduct as “Anyone, whether or not a
lawyer, who is an officer of a judicial system and who
performs judicial functions, including but not limited to
Justices of the Supreme Court of Appeals, Circuit Judges,
family court judges, Magistrates, Mental Hygiene
Commissioners Juvenile Referees, Special Commissioners
and Special Masters.”10
(footnote added). Judge-Elect Callaghan maintains that this incongruence between the
Code of Judicial Conduct and the Rules of Judicial Disciplinary Procedure serves to strip
Judicial Disciplinary Counsel and the Board of any authority to prosecute charges and/or
recommend discipline against him.
The West Virginia Constitution article VIII, section eight provides that
[u]nder its inherent rule-making power, which is hereby
declared, the supreme court of appeals shall, from time to
time, prescribe, adopt, promulgate and amend rules
prescribing a judicial code of ethics, and a code of regulations
and standards of conduct and performances for justices,
judges and magistrates, along with sanctions and penalties for
any violation thereof, and the supreme court of appeals is
authorized to censure or temporarily suspend any justice,
judge or magistrate having the judicial power of the state,
10
The Code of Judicial Conduct no longer contains a definition for “judge,” given
the substantial 2015 amendments, describing instead the “applicability” of the Code of
Conduct. Moreover, as pertains to Canon 4’s express reach over “judicial candidates,” it
appears simply that the procedural rules were not modified to comport with the specific
language in the Code of Judicial Conduct.
12
including one of its own members, for any violation of any
such code of ethics, code of regulations and standards[.]
In exercise of that authority, this Court has held that “[t]he purpose of judicial
disciplinary proceedings is the preservation and enhancement of public confidence in the
honor, integrity, dignity, and efficiency of the members of the judiciary and the system of
justice.” Syl., In the Matter of Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985). That such a
goal must, at a minimum, begin by regulating the conduct of those who seek to become
members of the judiciary hardly needs explication.11
Indeed as previously indicated, Judge-Elect Callaghan does not challenge
this Court’s authority, through the Code of Judicial Conduct, to regulate the activities of
judicial candidates. Instead he argues that the disciplinary procedural rules do not
expressly grant commensurate authority to Judicial Disciplinary Counsel or the Board to
act upon or enforce such regulations against a non-incumbent, lawyer-candidate.
Although this Court has not had occasion to specifically address the role of the Rules of
11
Accordingly, the various iterations of our judicial code of conduct have
historically swept broadly enough to regulate the conduct of judicial candidates. Canon
7(B)(1)(c) of West Virginia’s long-standing Judicial Code of Ethics (1977) provided that
“[a] candidate, including an incumbent judge, for a judicial office that is to be filled by
public election between competing candidates . . . should not . . . misrepresent his
identity, qualifications, present position, or other fact.” On January 1, 1993, the Code of
Judicial Conduct superseded the Code of Ethics and the corollary of this provision then
provided that a candidate shall not “knowingly misrepresent the identity, qualification,
present position or other fact concerning the candidate or an opponent[.]” Canon
5A(3)(d)(iii) (2015). In November 2015, the Court adopted the current Code of Judicial
Conduct, which substantially revised the prior Code and more closely mirrors the 2007
Model Code of Judicial Conduct promulgated by the American Bar Association,
containing the provisions cited above.
13
Judicial Disciplinary Procedure, it has examined the import of our other rules of
procedure.
In Arlan’s Department Store of Huntington, Inc. v. Conaty, 162 W. Va.
893, 897-98, 253 S.E.2d 522, 525 (1979), the Court observed as pertains to our
functionally comparable Rules of Civil Procedure:
The rules of civil procedure were designed to secure just,
speedy and inexpensive determinations in every action.
Neither the West Virginia Rules of Civil Procedure nor the
statutory rules of pleading, practice and procedure
impermissibly restrict the jurisdiction of circuit courts in the
constitutional sense. The rules of civil procedure do not
restrict the original and general jurisdiction of courts of
record in this State; they do not remove any class of cases or
restrict the types of disputes which a circuit court has judicial
jurisdiction to hear and adjudicate. The rules do, however,
establish procedures for the orderly process of civil cases as
anticipated by W.Va. Const. Art. III, § 10. They operate in
aid of jurisdiction and facilitate the public’s interest in just,
speedy and inexpensive determinations. They vindicate
constitutional rights by providing for the administration of
justice without denial or delay as required by W.Va. Const.
Art. III, § 17.
(emphasis added). Accordingly, the Arlan Court tersely rejected a claim that procedural
violations strip a court of jurisdiction: “Th[e] effect of noncompliance with the rules is
not equivalent to impermissibly depriving the court of its constitutional power or
jurisdiction, and to characterize it as such will not make it so.” Id. at 898, 253 S.E.2d at
526. As more pointedly stated by the Ohio Supreme Court:
It is well established that statutes establishing subject matter
jurisdiction, which create and define the rights of parties to
sue and be sued in certain jurisdictions, are substantive law.
14
“If the statute is jurisdictional, it is a substantive law of this
state, and cannot be abridged, enlarged, or modified by the
Ohio Rules of Civil Procedure.”
Proctor v. Kardassilaris, 873 N.E.2d 872, 876 (Ohio 2007) (quoting Akron v. Gay, 351
N.E.2d 475, 477 (Ohio 1976)).
Other courts take a similar view that procedural rules merely create a
mechanism to vindicate the substantive law and therefore do not affect jurisdiction.
“‘[T]he basis for the exercise of judicial authority is normally found in jurisdictional
statutes, not in the language of procedural rules.’” Interest of Clinton, 762 P.2d 1381,
1388 (Colo. 1988) (en banc) (quoting White v. Dist. Court, 695 P.2d 1133, 1135 (Colo.
1984)). In Levin v. Anouna, 990 P.2d 1136, 1138 (Colo. App. 1999), the Colorado Court
of Appeals stated that “a procedural statute or a court rule normally does not address
jurisdictional issues; restrictions upon a court’s jurisdiction are generally to be found in
statutes directly addressing that subject.” While acknowledging that a “procedural defect
result[ing] from a failure to comply with an essential requirement . . . may constitute
reversible error,” the court found that such procedural requirements do not implicate its
jurisdiction. Id.
The import of these decisions is that procedural rules are not designed to
either establish or affect jurisdiction. Accordingly, it is clear that it is the Code of
Judicial Conduct that provides the substantive, jurisdictional requirements for exercising
discipline over Judge-Elect Callaghan; the rules of disciplinary procedure are merely
15
that—procedural mechanisms for the exercise of that jurisdiction. Any technical
deficiency in the verbiage of the procedural rules does not serve to eradicate the
unmistakable grant of authority contained in the Code of Judicial Conduct to Judicial
Disciplinary Counsel and the Board to investigate, prosecute, and hear matters involving
violations thereof.
Moreover, even a hyper-technical reading of the Rules of Judicial
Disciplinary Procedure reveals sufficient breadth in its description of the Board’s
authority to allow for the prosecution and discipline of non-incumbent lawyer-candidates
for the judiciary. Both Rule 1.11 and 3.11 permit the JIC and Board to “engage in such
other activities related to judicial discipline as it deems appropriate[.]” In fact, Rule 5.4
expressly directs Disciplinary Counsel to “prosecute violations of the Code of Judicial
Conduct . . . before the . . . Judicial Hearing Board[.]” We therefore reject Judge-Elect
Callaghan’s contention that, as a non-incumbent, lawyer-candidate, neither Judicial
Disciplinary Counsel nor the Board have authority or jurisdiction over him for violations
of the Code of Judicial Conduct, as set forth therein.
To find otherwise would, as the Board concluded, create an inequity where
judicial candidates who are judges are held to the standards set forth in the Code of
Judicial Conduct, but lawyer-candidates are not. The Oregon Supreme Court similarly
noted and rejected the imbalance such an interpretation would make:
It is equally clear that to apply the limitations of Canon 7
B(7) to sitting judges, while allowing their as-yet-unelected
16
opponents to campaign unfettered by Canon 7B(7), would
create an advantage for the challenger. The legislature did not
intend the Commission to have so little and so ineffective
jurisdiction over judicial activity.
In re Fadeley, 802 P.2d 31, 36 (Ore. 1990). See also Wolfson v. Concannon, 811 F.3d
1176, 1191 (9th Cir. 2016) (Berzon, Cir. J., concurring) (“[S]tricter restrictions during
judicial campaigns . . . for sitting judges than for nonincumbent candidates for judicial
positions would create [] disparity[.]”).12 We therefore expressly hold that the provisions
of the West Virginia Rules of Judicial Disciplinary Procedure are applicable in their
entirety to “judicial candidates” as defined in the West Virginia Code of Judicial
Conduct, and permit the exercise of authority over said candidates for all purposes
articulated therein.
12
We find Judge-Elect Callaghan’s passing assertion that this incongruity is
resolved by construing the Rules to require violations of the Code of Judicial Conduct by
lawyer-candidates to be “handled by the West Virginia Lawyer Disciplinary Board”
unavailing. As he correctly notes, both Judicial Disciplinary Counsel and Lawyer
Disciplinary Counsel have overlapping authority to investigate and prosecute violations
of the Code of Judicial Conduct or Rules of Professional Conduct as per Rule 4 of the
Rules of Lawyer Disciplinary Procedure.
However, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board acts
upon “formal charges filed by the Investigative Panel.” W. Va. R. L. Disc. Proc. 3. The
Investigative Panel, concomitantly, has authority to find probable cause for “a violation
of the Rules of Professional Conduct.” W. Va. R. L. Disc. Proc. 2, 2.9(a) (emphasis
added). Moreover, the Hearing Panel Subcommittee is granted authority to sanction for
“a violation of the Rules of Professional Conduct.” W. Va. R. L. Disc. Proc. 3.15.
Therefore, the Hearing Panel Subcommittee has no authority to hear charges involving
violations of the Code of Judicial Conduct. The Board’s near-comprehensive authority
over judges and conduct governed by the Code of Judicial Conduct is further
demonstrated by Rule 3.12 which provides that even when judges are charged with
violation of the Rules of Professional Conduct, the Board maintains exclusive jurisdiction
over such discipline. W. Va. R. Jud. Disc. Proc. 3.12.
17
Having concluded that Judicial Disciplinary Counsel and the Board
permissibly exercised jurisdiction over Judge-Elect Callaghan in prosecuting, hearing,
and acting upon the charges against him, we now proceed to examine his substantive
objections to the Board’s findings and recommended discipline.
B. First Amendment Challenge to Rule 4.1(A)(9) and Rule 8.2(a)
As discussed above, the Board concluded that the subject flyer violated
Rule 4.1(A)(9) of the Code of Judicial Conduct which forbids judicial candidates from
“knowingly, or with reckless disregard for the truth, mak[ing] any false or misleading
statement[.]” Commensurately, the Board found the subject flyer violated Rule 8.2(a) of
the Rules of Professional Conduct which similarly prohibits a lawyer from making “a
statement that the lawyer knows to be false or with reckless disregard as to its truth or
falsity concerning the qualifications or integrity of a judge . . . [or] a candidate for
election . . . to judicial . . .office.”13 By authorizing the creation and mailing of the
subject flyer by his campaign consultant, the Board concluded that Judge-Elect Callaghan
also violated Rule 4.2(A)(4) which requires a candidate to take “reasonable measures to
13
In the interest of brevity and given the similarity between the “false statement”
prohibitions contained in Rule 4.1(A)(9) of the Code of Judicial Conduct and Rule 8.2(a)
of the Rules of Professional Conduct, our analysis herein of the substance of Rule
4.1(A)(9) should be read as equally applicable to Rule 8.2(a). We expressly note that
Judge-Elect Callaghan makes no separate constitutional challenge to Rule 8.2(a) that
differs from that which he advances against Rule 4.1(A)(9). See In re Chmura, 608
N.W.2d 31, 43 n.11 (Mich. 2000) (summarily applying analysis of judicial canon
restricting judicial candidate’s speech to companion Rule of Professional Conduct
similarly restricting lawyer’s speech about judges and other public legal officers).
18
ensure that other persons do not undertake on behalf of the candidate activities . . . that
the candidate is prohibited from doing by Rule 4.1[.]” Finally, as a result of the
foregoing, the Board further found that Judge-Elect Callaghan failed to “act at all times in
a manner consistent with the independence, integrity, and impartiality of the judiciary,”
in violation of Rule 4.2(A)(1).
Judge-Elect Callaghan argues that the Board’s recommended discipline, all
of which is based upon the statements made in the subject flyer, violates his right to free
speech under the First Amendment to the United States Constitution.14 He asserts that all
of the statements contained in the subject flyer are either objectively true, “substantially
true” or “rhetorical hyperbole/parody,” all of which is protected speech. He argues that
the flyer simply took two unrelated facts—Judge Johnson’s attendance at a federal
14
The First Amendment to the United States Constitution states: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.”
Although not referenced by Judge-Elect Callaghan, the West Virginia Constitution
likewise provides:
No law abridging the freedom of speech, or of the press, shall
be passed; but the Legislature may, by suitable penalties,
restrain the publication or sale of obscene books, papers, or
pictures, and provide for the punishment of libel, and
defamation of character, and for the recovery, in civil actions,
by the aggrieved party, of suitable damages for such libel, or
defamation.
W. Va. Const. art. III, § 7.
19
seminar and coal job losses in Nicholas County—and juxtaposed them, allowing the
public to draw any inferences it saw fit. The Board concluded that the statements in the
subject flyer were not entitled to First Amendment protection and were materially false in
violation of the Rules set forth hereinabove.15
15
The Board crafted a separate order entered in advance of the hearing denying
Judge-Elect Callaghan’s motion to dismiss the charges on constitutional grounds. Taking
issue apparently with the Board’s refusal to seek an advisory opinion from this Court
regarding the constitutionality of the Rule violations with which he was charged, he now
urges this Court to address the “serious procedural question” of whether administrative
agencies have the authority to address constitutional issues. Subsequent to oral argument,
Judge-Elect Callaghan submitted a notice of additional authorities containing an
additional citation to a case in support of this issue and further suggesting that remand
may be necessary, depending on this Court’s ruling on the constitutional issue presented.
First, we observe that Judge-Elect Callaghan forced the issues before the Board by
raising them in the context of a motion to dismiss, which necessarily must be ruled upon
before proceeding to disposition. Secondly, before this Court, he cites no authority
suggesting that an agency must first seek a court ruling on the constitutionality of the
rules it is charged with enforcing before acting. In fact, the cases he cites merely protect
the right of one who challenges the constitutionality of a rule to seek declaratory
judgment in the proper forum. Judge-Elect Callaghan apparently declined to do so in this
case, preserving his constitutional challenge for presentation to this Court upon
consideration of the recommended disposition.
Moreover, none of the cases cited suggest that the agency cannot act upon its rules
in the face of a constitutional challenge; in fact, they demonstrate the opposite. In each
case, the agency before which the constitutional challenge was raised acted with the
presumption that its rules and actions were constitutional and reserved to the appropriate
judicial forum the final resolution of constitutionality. That is precisely what has
occurred in this case. In fact, the leading case cited in support of the proposition that the
Board could not pass on the constitutionality of the Rules at issue states “although the
general rule is that agencies do not have the authority to decide constitutional issues,
agencies must consider and apply constitutional principles in determining procedures and
rendering decisions in contested cases.” Richardson v. Tenn. Bd. of Dentistry, 913
S.W.2d 446, 453 (Tenn. 1995). More specifically, “[w]hen the focus of an aggrieved
(continued . . .)
20
1. Facial Constitutionality of Code of Judicial Conduct Rule 4.1(A)(9) and
Rule of Professional Conduct 8.2(a)
It is well-established that “speech about public issues and the qualifications
of candidates for elected office commands the highest level of First Amendment
protection.” Williams-Yulee v. The Fla. Bar, 135 S. Ct. 1656, 1665 (2015). However,
that being established, the United States Supreme Court has made clear that judicial
candidates may be treated differently than political candidates for purposes of curtailing
improper speech: “Judges are not politicians, even when they come to the bench by way
of the ballot. And a State’s decision to elect its judiciary does not compel it to treat
judicial candidates like a campaigner for political office.” Id. at 1662. In
acknowledgment of this view, the commentary to our Rule 4.1 notes that “[t]he role of a
judge is different from that of a legislator or executive branch official, even when the
judge is subject to public election [and] [c]ampaigns for judicial office must be conducted
differently from campaigns for other offices.” W. Va. Code of Jud. Cond. 4.1 cmt. See
also Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9
Geo. J. Legal Ethics 1059, 1067 (1996) (“The American tradition sets judges aside from
the hurly-burly of sometimes unseemly political strife. We place courts and judges on a
party’s claim is an ‘as applied’ challenge to the constitutionality of a statute or any
challenge to the constitutionality of an agency rule, the agency may initially rule on the
challenge.” Id. at 455. See also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 435 (1982) (criticizing disciplinary respondent for failing to raise
constitutional challenge during disciplinary proceedings as there was nothing to indicate
“the members of the Ethics Committee, the majority of whom are lawyers, would have
refused to consider a claim that the rules which they were enforcing violated federal
constitutional guarantees”).
21
higher plateau and hope that in doing so they will act the part and ask us to do the same
on matters of importance. Consignment of judges to regular rough-and-tumble politics
makes the judiciary less capable of filling this role.”). The Williams-Yulee Court
explained further that since “the judiciary ‘has no influence over either the sword or the
purse; . . . neither force nor will but merely judgment[,]’ . . . . [t]he judiciary’s authority []
depends in large measure on the public’s willingness to respect and follow its decisions.”
135 S. Ct. at 1666 (citations omitted). In short, the bedrock of the public’s submission to
the judiciary’s authority is the public’s faith in its integrity, impartiality, and fairness.
With the critical understanding that “[s]tates may regulate judicial elections
differently than they regulate political elections, because the role of judges differs from
the role of politicians[,]” it is therefore incumbent upon this Court to determine if Rule
4.1(A)(9) of the Code of Judicial Conduct and Rule 8.2(a) of the Rules of Professional
Conduct improperly infringe on the petitioner’s First Amendment rights. Id. at 1667. The
Supreme Court has explicitly held that “[a] State may restrict the speech of a judicial
candidate only if the restriction is narrowly tailored to serve a compelling interest.” Id. at
1665.
a. Existence of a Compelling State Interest
Without question, this Court has previously recognized that “[t]he State has
compelling interests in maintaining the integrity, independence, and impartiality of the
judicial system—and in maintaining the appearance of the same—that justify unusually
22
stringent restrictions on judicial expression, both on and off the bench.” In the Matter of
Hey, 192 W. Va. 221, 227, 452 S.E.2d 24, 30 (1994). The United States Supreme Court
has agreed: “We have recognized the ‘vital state interest’ in safeguarding ‘public
confidence in the fairness and integrity of the nation’s elected judges.’” Williams-Yulee,
135 S. Ct. at 1666 (quoting Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 889
(2009)).16 While “[t]he concept of public confidence in judicial integrity does not easily
16
Similarly, and as pertains to the lawyer disciplinary penalty, this Court has
expressly held with respect to lawyers’ asserted free speech rights:
The Free Speech Clause of the First Amendment protects a
lawyer’s criticism of the legal system and its judges, but this
protection is not absolute. A lawyer’s speech that presents a
serious and imminent threat to the fairness and integrity of the
judicial system is not protected. When a personal attack is
made upon a judge or other court official, such speech is not
protected if it consists of knowingly false statements or false
statements made with a reckless disregard of the truth. . . .
Syl. Pt. 1, in part, Comm. on Legal Ethics v. Douglas, 179 W.Va. 490, 370 S.E.2d 325
(1988) (emphasis added). More recently, the Court held:
. . . [A] statement by an attorney that such attorney knows to
be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate
for election or appointment to judicial or legal office is not
protected by the First Amendment as public speech on a
matter of public concern where such statement is not
supported by an objectively reasonable factual basis. The
State’s interest in protecting the public, the administration of
justice, and the legal profession supports use of the
objectively reasonable standard in attorney discipline
proceedings involving disparagement of the credibility of the
aforementioned judicial officers.
(continued . . .)
23
reduce to precise definition, nor does it lend itself to proof by documentary record[,] . . .
no one denies that it is genuine and compelling.” Williams-Yulee, 135 S. Ct. at 1667.
Although it is fairly inarguable that states have a compelling state interest
in maintaining public confidence in their judiciary, we pause briefly in our analysis to
give proper treatment specifically to West Virginia’s wide-ranging measures to uphold
the integrity and impartiality of judicial officials and candidates.17 The West Virginia
Code of Judicial Conduct requires that those within the judiciary “respect and honor the
judicial office as a public trust and strive to maintain and enhance confidence in the legal
system.” Preamble, W. Va. Code of Jud. Cond. It critically mandates that the judiciary
“maintain the dignity of judicial office at all times, and avoid both impropriety and the
Syl. Pt. 5, in part, Lawyer Disciplinary Bd. v. Hall, 234 W. Va. 298, 765 S.E.2d 187, 190
(2014). See also n.13, supra.
17
As explained by now-Chief Justice Loughry in his book about West Virginia
election corruption:
For too long, West Virginians have witnessed lying about
candidates as a matter of tradition and expected behavior.
The result, however, is that lying during a campaign erodes
democracy, defames good people, and discourages others
from even considering entering politics. There is simply no
justification and no First Amendment right to lie and destroy
someone’s reputation and life. It amounts to obtaining a
public office through stealth and deception and by robbing
every voter of a fair election.
Allen H. Loughry, II, “Don’t Buy Another Vote, I Won’t Pay for a Landslide,” 498
(McClain Printing Co. 2006). See also Caperton, 556 U.S. 868 (discussing effect of
campaign contributions on obligation of West Virginia Supreme Court of Appeals justice
to recuse himself).
24
appearance of impropriety . . . [and] aspire at all times to conduct that ensures the greatest
possible public confidence in their independence, impartiality, integrity, and
competence.” Id. While not naive enough to suggest that the public believes the judiciary
to be infallible, judicial officers and candidates must minimally conduct themselves such
as to preserve the institutional veneration with which the judiciary is historically imbued.
We agree whole-heartedly that
[t]he public at large is entitled to honesty and integrity in
judicial officials elected to mete out justice, apportion equity,
and adjudicate disputes. We cannot ask for more, but we
should certainly not expect less, particularly when it is the
robed arbiter who, when administering the oath to witnesses,
cautions them to tell the truth, the whole truth, and nothing
but the truth.
In re Lowery, 999 S.W.2d 639, 663 (Tex. Rev. Trib. 1998).
That said, this Court is not blind to the “fundamental tension between the
ideal character of the judicial office and the real world of electoral politics.” Chisom v.
Roemer, 501 U.S. 380, 400 (1991). See In re Donohoe, 580 P.2d 1093, 1097 (Wash.
1978) (en banc) (recognizing the “delicate balancing of rights involving the public, the
incumbent judge, and the lawyer candidate for judicial office”). However, as this Court
held in syllabus point six of State ex rel. Carenbauer v. Hechler, 208 W. Va. 584, 542
S.E.2d 405 (2000), “[t]he West Virginia Constitution confers on the West Virginia
Supreme Court of Appeals, both expressly and by necessary implication, the power to
protect the integrity of the judicial branch of government and the duty to regulate the
political activities of all judicial officers.” (emphasis added). Accordingly, the
25
requirements and prohibitions contained in our Code of Judicial Conduct carry out this
Court’s mandate to ensure that “integrity and impartiality” are visible, demonstrable
qualities of our judicial candidates and not merely a meaningless ethical talisman.
Significantly, judicial candidates willingly submit themselves and their campaigns to
these restrictions. See Shepard, supra at 1060 (“The notion that judges must sacrifice
many of their personal interests to the interests of the system and the litigants that it
serves is ancient and widespread.”).
Not only is protecting the integrity of the judiciary the constitutional duty
of this Court, but it has likewise been woven into the fabric of public policy as expressed
by our Legislature. In a measure that complements the Code of Judicial Conduct’s
distinguishing regulation of judicial campaigns, in 2015, the West Virginia Code was
amended to make judicial elections non-partisan. See W. Va. Code §§ 3-5-6a through 6d
(2015). This amendment represents an unmistakable Legislative mandate that West
Virginia’s judiciary must distance itself from the fray of partisan politics. These
legislative and judicial constraints plainly seek to discourage—if not eradicate—within
the judiciary, the type of distasteful and reckless campaign conduct which, quite
unfortunately, is becoming increasingly more common with each passing election. “The
citizenry cannot conceivably maintain faith in the judiciary’s impartiality and integrity if
it witnesses the slick, misleading advertisements and public mudslinging that candidates
use to reach the bench every election year.” Adam R. Long, Keeping Mud Off the Bench:
The First Amendment and Regulation of Candidates’ False or Misleading Statements in
26
Judicial Elections, Duke Law Journal, 787, 791 (Nov. 2001). These measures plainly
seek to preserve not only the personal integrity and impartiality of the judicial candidates
themselves, but more importantly, that of the institution.
This discussion leads us inexorably to the conclusion that, in terms of
Judge-Elect Callaghan’s challenge to the facial constitutionality of Rule 4.1(A)(9) and
Rule 8.2(a), there is plainly a compelling state interest which justifies restricting judicial
candidates’ speech, which is undertaken both in his or her role as a judicial candidate and
lawyer. The issue that remains is whether our Rules, as crafted, are sufficiently narrowly
tailored to meet that compelling state interest.
b. Narrow Tailoring of Rule 4.1(A)(9) and 8.2(a)
Code of Judicial Conduct Rule 4.1(A)(9) prohibits a judicial candidate from
“knowingly, or with reckless disregard for the truth, mak[ing] any false or misleading
statement[.]” (emphasis added). 18 The commentary to this Rule augments this
18
Insofar as Judge-Elect Callaghan was not charged with, nor does the Board base
its recommendation on, any alleged “misleading” statement, the issue of whether the
“misleading” portion of Rule 4.1(A)(9) is constitutional is not squarely before the Court.
Accord Disciplinary Counsel v. Tamburrino, 2016 WL 7116096, *4 (Ohio, Dec. 7, 2016)
(declining to address constitutionality of “misleading” campaign speech prohibition
because candidate was not charged with such). Given our conclusion that the subject
flyer was materially false, we see no occasion herein to resolve the constitutionality of
that portion of Rule 4.1(A)(9) prohibiting such statements. We do, however, note that
such provisions in similar Rules have been widely found to be facially unconstitutional.
See Winter v. Wolnitzek, 834 F.3d 681, 694 (6th Cir. 2016) (“[O]nly a ban on conscious
falsehoods satisfies strict scrutiny.”); Butler v. Ala. Judicial Inquiry Comm’n, 802 So. 2d
207 (Ala. 2001); Chmura, 608 N.W.2d 31 (amending rule to eliminate unconstitutional
(continued . . .)
27
prohibition by explaining that “[j]udicial candidates must be scrupulously fair and
accurate in all statements made by them and by their campaign committees.” Rule of
Professional Conduct 8.2(a) similarly prohibits a lawyer from making “a statement that
the lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge, adjudicatory officer or public legal
officer, or of a candidate for election or appointment to judicial or legal office.”
(emphasis added).
With respect to false statements in general, Justice Alito has observed that
the United States Supreme Court has repeatedly made clear that such statements “possess
no intrinsic First Amendment value.” United States v. Alvarez, 132 S. Ct. 2537, 2560-61
(2012) (Alito, J., dissenting).19 Further, the United States Supreme Court has stated
prohibition on misleading or deceptive speech, or which contains material
misrepresentations or omissions); In re O’Toole, 24 N.E.3d 1114 (Ohio 2014).
19
Citing Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600,
612, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003) (“Like other forms of public deception,
fraudulent charitable solicitation is unprotected speech”); BE & K Constr. Co. v. NLRB,
536 U.S. 516, 531, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002) (“[F]alse statements may be
unprotected for their own sake”); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52, 108
S. Ct. 876, 99 L. Ed. 2d 41 (1988) (“False statements of fact are particularly valueless;
they interfere with the truth-seeking function of the marketplace of ideas, and they cause
damage to an individual’s reputation that cannot easily be repaired by counterspeech,
however persuasive or effective”); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776,
104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (“There is ‘no constitutional value in false
statements of fact’” (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S. Ct.
2997, 41 L. Ed. 2d 789 (1974))); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731,
743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983) (“[F]alse statements are not immunized by
the First Amendment right to freedom of speech”); Brown v. Hartlage, 456 U.S. 45, 60,
(continued . . .)
28
“[t]hat speech is used as a tool for political ends does not automatically bring it under the
protective mantle of the Constitution. For the use of the known lie as a tool is . . . at odds
with the premises of democratic government[.]” Garrison, 379 U.S. at 75. Nevertheless,
prohibitions on false statements must still contain sufficient proof requirements to avoid
infringing on protected speech:
[I]n order to prevent the chilling of truthful speech on matters
of public concern, we have held that liability for the
defamation of a public official or figure requires proof that
defamatory statements were made with knowledge or reckless
disregard of their falsity. . . . All of these proof requirements
inevitably have the effect of bringing some false factual
statements within the protection of the First Amendment, but
this is justified in order to prevent the chilling of other,
valuable speech.
Alvarez, 132 S. Ct. at 2563-64 (emphasis added). Accordingly, prohibitions on
knowingly or recklessly false statements by judicial candidates have been universally
upheld and found not to infringe on First Amendment rights. Most recently, in Winter,
the Sixth Circuit found a false statement ban identically worded to our Rule 4.1(A)(9) to
102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (“Of course, demonstrable falsehoods are not
protected by the First Amendment in the same manner as truthful statements”); Herbert v.
Lando, 441 U.S. 153, 171, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979) (“Spreading false
information in and of itself carries no First Amendment credentials”); Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct.
1817, 48 L. Ed. 2d 346 (1976) (“Untruthful speech, commercial or otherwise, has never
been protected for its own sake”); Gertz, supra, at 340, 94 S. Ct. 2997 (“[T]he erroneous
statement of fact is not worthy of constitutional protection”); Time, Inc. v. Hill, 385 U.S.
374, 389, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) (“[T]he constitutional guarantees [of the
First Amendment] can tolerate sanctions against calculated falsehood without significant
impairment of their essential function”); Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct.
209, 13 L. Ed. 2d 125 (1964) (“[T]he knowingly false statement and the false statement
made with reckless disregard of the truth, do not enjoy constitutional protection”).
29
be constitutional on its face. 834 F.3d 681. The Winter court, citing Kentucky’s interest
in “preserving public confidence in the honesty and integrity of its judiciary,” found that
its ban on false statements was narrowly tailored to meet that compelling interest. Id. at
693. In reaching that conclusion, the court succinctly stated “[t]he narrowest way to keep
judges honest during their campaigns is to prohibit them from consciously making false
statements about matters material to the campaign. This canon does that, and does it
clearly.” Id.
Likewise, the Ohio Supreme Court reformulated its prohibition on false
statements by judicial candidates to apply only to knowingly or recklessly made false
statements such that it would not run afoul of the First Amendment. In O’Toole, the Ohio
Supreme Court observed that banning false statements did not circumvent “free debate”
because “intentional lying is not inevitable in free debate” and that “[l]ies do not
contribute to a robust political atmosphere.” 24 N.E.3d at 1126 (emphasis in original).
The Court found that a rule with such narrow scope, applicable only to speech made
during a specific time period (the campaign), conveyed by
specific means (ads, sample ballots, etc.), disseminated with a
specific mental state (knowingly or with reckless disregard)
and with a specific mental state as to the information’s
accuracy (with knowledge of its falsity or with reckless
disregard as to its truth or falsity)
was plainly constitutional. Id. Accord Myers v. Thompson, 192 F. Supp. 3d 1129 (D.
Mont. 2016) (denying preliminary injunction because candidate unlikely to succeed on
merits of constitutional challenge to Rule prohibiting judicial candidate from making
30
false statement); Butler, 802 So. 2d 207 (acknowledging constitutionality of restriction on
judicial candidate speech where statements are made with knowing or reckless disregard
of falsity); In re Chmura, 626 N.W.2d 876, 883 (Mich. 2001) (“[W]e believe that a rule .
. . prohibiting a judicial candidate from only knowingly or recklessly making a false
communication, strikes a reasonable constitutional balance between the candidate’s First
Amendment rights and the state’s interest in preserving the integrity of the judicial
system.”); Donohoe, 580 P.2d at 1097 (rejecting First Amendment challenge to
restriction on judicial candidate’s speech where statement made with “knowledge of its
falsity”).
Moreover, in assessing the First Amendment’s protections to the speech of
a judicial candidate, courts have noted the categorical inapplicability of the adage that the
“remedy for misleading speech is more speech, not less.” Winter v. Wolnitzek, 56 F.
Supp. 3d 884, 898 (E.D. Ky. 2014) (citing Whitney v. California, 274 U.S. 357, 377,
(1927) (Brandeis, J., concurring)). As the court observed in Myers, “[w]hile
counterspeech may be a strong alternative in the political election context, . . .
[counterspeech] does not work to enhance the compelling State interest in judicial
elections[.]” 192 F. Supp. 3d at 1140. The reason for this is obvious. While
counterspeech may correct any misapprehensions about the subject of the false speech,
i.e. the judicial opponent, it does nothing to restore erosion of the public’s confidence in
the judicial system as an institution, which occurs when its candidates spread falsehoods.
As well-stated by the Myers court:
31
Counterspeech is the best argument to explore falsehoods in
speech about ideas and beliefs. Counterspeech is the cure to
hate speech, to subversive speech, or to disagreeable political
ideas or policies. Counterspeech is not a remedy to a
systemic challenge that is false and undermines the public’s
confidence in the third branch of government.
Id. at 1141.
Furthermore, judicial candidates may be unable to adequately respond to
false attacks with “more speech” because of the very restrictions their opponent refused
to honor—the Code of Judicial Conduct. “[B]ecause their conduct is governed by [the
Code of Judicial Conduct] . . . . [j]udicial candidates cannot always use ‘channels of
effective communication’ to rebut misleading statements made about them and should
not be left in the vulnerable position of fighting a political battle with one hand tied
behind their backs.” Long, supra at 815 (quoting Gertz v. Robert Welch, Inc., 418 U.S.
323, 344 (1974)). In this particular case, as the Board and Judge Johnson correctly noted,
Judge Johnson “could not make public statements that, contrary to what was being
represented by [Judge-Elect Callaghan], that he did not support policies which might
have a negative impact on coal employment in Nicholas County, because the Code of
Judicial Conduct would preclude such statements[.]” A judicial candidate should not be
left with the Hobson’s choice of leaving false attacks unrequited or following his or her
opponent into the ethical minefield of judicial counter-speech.
Therefore, as pertains to false speech made with knowledge of or reckless
disregard as to its falsity, those portions of our Rules clearly pass constitutional muster.
32
We therefore hold that insofar as West Virginia Code of Judicial Conduct Rule 4.1(A)(9)
and West Virginia Rule of Professional Conduct 8.2(a) prohibit lawyers, judges and
judicial candidates from knowingly, or with reckless disregard for the truth, making a
false statement as more fully proscribed therein, they are facially constitutional under the
First Amendment to the United States Constitution. Likely in view of the fact that our
Rules mirror countless other such ethical prohibitions which have been found facially
constitutional, we observe that the tenor of Judge-Elect Callaghan’s argument focuses
largely on his “as-applied” challenge.
2. Constitutionality of Rule 4.1(A)(9)and Rule 8.2(a) As-Applied
In that regard, Judge-Elect Callaghan maintains that Rule 4.1(A)(9) and
Rule 8.2(a) are unconstitutional as applied to the speech contained in the flyer inasmuch
as the flyer is objectively true, substantially true and/or contains rhetorical hyperbole or
parody. In effect, he claims that the flyer is not actionably “false” in the first instance.20
We now turn to the substance of the flyer to resolve these issues.
20
Judge-Elect Callaghan does not challenge the Board’s conclusion that the
allegedly false statements were made “knowingly” or with “reckless disregard.” We
therefore find it unnecessary to discuss this aspect of the violations in any detail. We
agree with the Board that the evidence demonstrates that he was fully aware of the
information which was utilized to craft the flyer and admitted as much.
33
a. Rhetorical Hyperbole and Parody
Judge-Elect Callaghan first argues that the opening statement of the flyer—
“Barack Obama & Gary Johnson Party at the White House . . .”—is merely a “colorful
way” of saying that Judge Johnson attended an event at the White House and that it was
“not intended to be taken literally.” As such, he argues that the statement is rhetorical
hyperbole or parody. With respect to such purported “colorful” speech, the First
Amendment does in fact protect speech which contains
parody, fantasy, rhetorical hyperbole, and imaginative
expressions, “that cannot ‘reasonably [be] interpreted as
stating actual facts’ about an individual[.]” Because no
reasonable person would take these types of speech as true,
they simply cannot impair one’s good name. “This provides
assurance that public debate will not suffer for lack of
‘imaginative expression’ or the ‘rhetorical hyperbole’ which
has traditionally added much to the discourse of our Nation.”
Mink v. Knox, 613 F.3d 995, 1005 (10th Cir. 2010) (internal citations omitted) (quoting
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)).
First, Judge-Elect Callaghan perfunctorily suggests that this aspect of the
flyer is “parody.” To support this contention, he briefly refers to the flyer as “harken[ing]
back to the ‘beer summit’ between Harvard University Professor Henry Louis Gates and
Sergeant James Crowley[.]”21 The United States Supreme Court has explained that
21
In 2009, Harvard professor Henry Louis Gates, an African-American, was
arrested for disorderly conduct by Sergeant James Crowley, a Caucasian police officer,
upon Sergeant Crowley’s belief that Mr. Gates was breaking and entering into what
turned out to be his own home. In an attempt to address racial tensions heightened by
(continued . . .)
34
[p]arody’s humor, or in any event its comment, necessarily
springs from recognizable allusion to its object through
distorted imitation. Its art lies in the tension between a known
original and its parodic twin. When parody takes aim at a
particular original work, the parody must be able to “conjure
up” at least enough of that original to make the object of its
critical wit recognizable.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 588 (1994) (emphasis added) (quoting
Elsmere Music, Inc. v. Nat’l Broad. Co. Inc., 623 F.2d 252, 253 n.1 (2d Cir. 1980)); see
also Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Grp., Inc., 886 F.2d 490, 494
(2d Cir. 1989) (“A parody must convey two simultaneous—and contradictory—
messages: that it is the original, but also that it is not the original and is instead a
parody.”).
We may dispense with this argument in short order. Under any common
understanding of the concept of “parody,” a parodist creates a facsimile of an original
image, event, person, etc. and alters it in a manner that distinguishes it from the original
for the purpose of humor, commentary, etc. The sine qua non of parody is a recognition
of that which it purports to parody. Using the language of the United States Supreme
Court, the subject flyer lacks a “reasonable allusion” to any object, person, or event,
much less the event posited by Judge-Elect Callaghan. There is nothing whatsoever in
the flyer which can be fairly characterized as being reminiscent of the so-called “beer
summit,” nor does he explain in what manner it purports to parody it. The “beer summit”
this event, President Obama invited the men to the White House to meet in the White
House garden in what was then characterized as a “beer summit.”
35
moniker was derived of a well-publicized photograph of President Obama, Vice President
Biden, Mr. Gates, and Sergeant Crowley sitting around a table in the White House
gardens, each with a mug of beer in front of them. Aside from what appears to be a
pilsner glass of beer depicted near the image of President Obama on the flyer, there is
literally no similarity between the events or depictions, much less a “recognizable
allusion.”
Turning now to Judge-Elect Callaghan’s more substantial contention that
this aspect of the flyer is mere “rhetorical hyperbole,” the Supreme Court has instructed
that rhetorical hyperbole results when the speaker offers speech which cannot
“reasonably [be] interpreted as stating actual facts about the [individual] involved.”
Hustler, 485 U.S. 46, 50 (1988). Therefore, we must determine if that portion of the
subject flyer indicating that Judge Johnson “part[ied]” with President Obama at the White
House could reasonably be interpreted as stating actual facts about Judge Johnson; if so,
it does not qualify as rhetorical hyperbole. See also Milkovich, 497 U.S. at 23-24
(Brennan, J., dissenting) (“[T]he ‘statement’ that the plaintiff must prove false . . . is not
invariably the literal phrase published but rather what a reasonable reader would have
understood the author to have said.”); Greenbelt Coop. Publ’g Ass’n, Inc., v. Bresler, 398
U.S. 6, 14 (1970) (characterizing speech as rhetorical hyperbole where “even the most
careless reader must have perceived” it as such). Moreover, “[c]ontext is crucial and can
turn what, out of context, appears to be a statement of fact into ‘rhetorical hyperbole,’
36
which is not actionable.” Ollman v. Evans, 750 F.2d 970, 1000 (D.C. Cir.1984) (en banc)
(Bork, J., concurring). As further instruction, we are mindful that
[a]lthough rhetorically hyperbolic statements may “at first
blush appear to be factual[,] . . . they cannot reasonably be
interpreted as stating actual facts about their target.” Where
rhetorical hyperbole is employed, the language itself
“negate[s] the impression that the writer was seriously
maintaining that [the plaintiff] committed the [particular act
forming the basis of the alleged defamation].”
Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378–79 (S.D. Fla. 2006) (citations
omitted).
In spite of Judge-Elect Callaghan’s contention that “the idea that the
President of the United States would ‘party’ with a Nicholas County Circuit Court Judge
is ridiculous on its face,” we can perceive of no reason why Judge Johnson could not
have been invited to the White House by President Obama or on his behalf to what could
be characterized as a “party” “in support of” the President’s “legislative agenda” as stated
on the flyer. As explained above, Judge Johnson was involved in initiatives receiving
federal funding and oversight, such as could theoretically come within the ambit of
matters for which the President may choose to gather, honor, or entertain such
individuals. Certainly individuals from all walks and of various repute are frequently
visitors to The White House and/or guests of the President. The notion that those who do
so are occasionally treated to receptions, cocktail parties, or the like is similarly not
unheard of or incredible on its face. Quite the contrary, the idea of a long-time,
distinguished sitting circuit judge attending a function at the White House at the
37
invitation of the President–for whatever reason and however that may come about–is
imminently reasonable and believable. Frankly, it is undoubtedly because it is so
believable—and when viewed in connection with the purported hardships being
experienced in Nicholas County, potentially incendiary—that Judge-Elect Callaghan and
his campaign consultant found it compelling campaign fodder. In this instance, however,
it simply did not occur. We therefore conclude that this statement could reasonably be
perceived as stating actual facts about Judge Johnson and therefore reject Judge-Elect
Callaghan’s contention that this aspect of the subject flyer was mere hyperbole deserving
of First Amendment protection.
b. The Objective and/or Substantial Truth of the Flyer
As to the remainder of the flyer, Judge-Elect Callaghan examines each
particular phrase in isolation, arguing that each is either substantially or objectively true.
First, he argues that the remainder of the headlining statement regarding Obama and
Johnson partying at the White House—“while Nicholas County loses hundreds of
jobs”—is substantially true. He argues that Judge Johnson attended the conference at a
time when Nicholas County was losing jobs. 22 As to the mock “Layoff Notice,” he
argues that the phrase “While Nicholas County lost hundreds of jobs to Barack Obama’s
coal policies . . .” is opinion. He argues that the remainder—“Judge Gary Johnson
accepted an invitation from Obama to come to the White House to support Obama’s
22
As the Board noted, however, the job losses cited in the flyer occurred over a
four-year period preceding Judge Johnson’s attendance at the meeting and conference.
38
legislative agenda”—is true because the conference occurred a couple of weeks after
Obama signed the Justice for Victims of Trafficking Act of 2015, which was a part of
Obama’s legislative agenda. As to the remaining sentence stating “That same month,
news outlets reported a 76% drop in coal mining employment” he argues that it is also
objectively true given a June 17, 2015, article admitted into evidence which states that
Nicholas County lost 558 jobs representing a 76% drop in coal mining employment.
Finally, he argues that the last portion stating “Can we trust Judge Gary Johnson to
defend Nicholas County against job-killer Barack Obama?” is merely a rhetorical
question.
Despite Judge-Elect Callaghan’s attempt to finely parse the flyer into
discrete, palatable bits of objective or “substantial” truth, the United States Supreme
Court has stated that this Court must examine “‘the substance, the gist, the sting’” of the
communication as a whole to determine falsity. Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 517 (1991) (quoting Heuer v. Kee, 59 P.2d 1063, 1064 (Cal. Dist. Ct. App.
1936)). Critically, the Supreme Court has instructed that a communication is considered
false if it has “‘a different effect on the mind of the reader from that which the pleaded
truth would have produced.’” Id. (quoting R. Sack, Libel, Slander, and Related Problems
138 (1980)) (emphasis added). This Court long ago adopted precisely this standard as
pertains to the concept of “falsity” in the parallel libel and defamation contexts:
The law . . . takes but one approach to the question of
falsity, regardless of the form of the communication. It
overlooks minor inaccuracies and concentrates upon
39
substantial truth. Minor inaccuracies do not amount to falsity
so long as the substance, the gist, the sting, of the [] charge be
justified. A statement is not considered false unless it would
have a different effect on the mind of the reader from that
which the pleaded truth would have produced.
Syl. Pt. 4, in part, State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548
(1996). Other courts agree with and have utilized this analysis when assessing the falsity
of a judicial candidate’s speech. See Chmura, 626 N.W.2d at 887 (“The communication
as a whole must be analyzed [and] . . . . [i]f ‘the substance, the gist, the sting’ of the
communication is false, then it can be said that the judicial candidate ‘used or
participated in the use of a false communication.’”).
Typically this so-called “substantial truth doctrine” inures to the benefit of
the accused, i.e. if something is “substantially” true in overall effect, minor inaccuracies
or falsities will not create falsity. However, in this particular instance, it works to Judge-
Elect Callaghan’s detriment because “the substance, the gist, the sting” of the
communication, taken as a whole, is patently false. See Turner v. KTRK Television, Inc.,
38 S.W.3d 103, 115 (Tex. 2000) (collecting cases which “represent the converse of the
substantial truth doctrine” because they “convey a substantially false and defamatory
impression”). As the Turner court explained, “a publication can convey a false and
defamatory meaning by omitting or juxtaposing facts[.]” Id. at 114.
We find that merely peppering the latter portion of the flyer with statistical
facts about job losses in Nicholas County does not elevate the flyer as a whole to the
40
level of “substantially true.” Nor does the narrow fact that Judge Johnson did in fact
attend a federal seminar and meeting make the statement that he “accepted an invitation
from Obama to come to the White House” substantially true. There can be little question
that the truth, i.e. that Judge Johnson merely attended a federally-required meeting and
seminar, would produce a “different effect on the mind of the reader” than what the flyer
conveys, i.e. that Judge Johnson was invited by and socialized with President Obama. 23
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
23
In its recommended decision, the Board focuses its “falsity” discussion heavily
on the fact that the job losses referenced in the flyer preceded Judge Johnson’s attendance
at the seminar and the fact that the seminar had nothing to do with “coal-killing”
legislative policies of President Obama. However, we find that the upshot of the flyer is,
as Judge Johnson put it, that he was “fiddling while Rome burned,” i.e. he was “partying”
in Washington at the invitation of and with President Obama while Nicholas Countians
were struggling with job losses. Collaterally, Judge-Elect Callaghan and Mr. Heflin may
have hoped that recipients of the flyer would also presume that the “legislative agenda”
that yielded the invitation and which Judge Johnson was “partying” in support of was
related to the President’s “coal-killing” policies and therefore was directly related to the
job losses. That is certainly a reasonable implication from the text of the flyer. However,
we find that the flyer is false on a more fundamental level as described herein.
41
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.
C. Discipline
In addition to his assertions regarding jurisdictional issues and First
Amendment concerns, Judge-Elect Callaghan also contends that the sanctions
recommended by the Judicial Hearing Board are excessive. As referenced above, “[t]he
purpose of judicial disciplinary proceedings is the preservation and enhancement of
42
public confidence in the honor, integrity, dignity, and efficiency of the members of the
judiciary and the system of justice.” Gorby, 176 W.Va. at 16, 339 S.E.2d at 702. The
objective of any judicial disciplinary proceeding must be to “preserve public confidence
in the integrity and impartiality of the judiciary.” In re Wilfong, 234 W. Va. 394, 407,
765 S.E.2d 283, 296 (2014).
Consistent with that goal, “[t]his Court has the inherent power to inquire
into the conduct of justices, judges and magistrates, and to impose any disciplinary
measures short of impeachment that it deems necessary to preserve and enhance public
confidence in the judiciary.” Syl. Pt. 8, In re Watkins, 233 W.Va. 170, 172, 757 S.E.2d
594, 596 (2013). In pertinent part of syllabus point seven of Watkins, this Court also
explained “[i]t is clearly within this Court’s power and discretion to impose multiple
sanctions against any justice, judge or magistrate for separate and distinct violations of
the Code of Judicial Conduct and to order that such sanctions be imposed consecutively.”
Id. (emphasis supplied). This authority, as referenced above, is derived from article VIII,
section 8 of the West Virginia Constitution.
Pursuant to article VIII, section 8 of the West Virginia
Constitution, this Court has the inherent and express authority
to “prescribe, adopt, promulgate and amend rules prescribing
a judicial code of ethics, and a code of regulations and
standards of conduct and performances for justices, judges
and magistrates, along with sanctions and penalties for any
violation thereof[.]”
Syl. Pt. 5, Committee On Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994); see
also Syl. Pt. 1, West Virginia Judicial Inquiry Comm’n v. Dostert, 165 W.Va. 233, 271
43
S.E.2d 427 (1980) (“The Supreme Court of Appeals will make an independent evaluation
of the record and recommendations of the Judicial [Hearing] Board in disciplinary
proceedings.”).
The parameters of potential discipline in this proceeding are governed by
Rule 4.12 of the West Virginia Rules of Judicial Disciplinary Procedure.24 Pursuant to
Rule 4.12,
[t]he Judicial Hearing Board may recommend or the
Supreme Court of Appeals may impose any one or more of
the following sanctions for a violation of the Code of Judicial
Conduct: (1) admonishment; (2) reprimand; (3) censure; (4)
suspension without pay for up to one year; (5) a fine of up to
$5,000; or (6) involuntary retirement for a judge because of
advancing years and attendant physical or mental incapacity
and who is eligible to receive retirement benefits under the
judges’ retirement system or public employees retirement
system . . . . Any period of suspension without pay shall not
interfere with the accumulation of a judge’s retirement credit
and the State shall continue to pay into the appropriate
24
We also emphasize the significance of Rule 1 of the West Virginia Rules of
Judicial Disciplinary Procedure, providing:
The ethical conduct of judges is of the highest
importance to the people of the State of West Virginia and to
the legal profession. Every judge shall observe the highest
standards of judicial conduct. In furtherance of this goal, the
Supreme Court of Appeals does hereby establish a Judicial
Investigation Commission to determine whether probable
cause exists to formally charge a judge with a violation of the
Code of Judicial Conduct promulgated by the Supreme Court
of Appeals to govern the ethical conduct of judges or that a
judge because of advancing years and attendant physical and
mental incapacity, should not continue to serve.
44
retirement fund the regular payments as if the judge were not
under suspension without pay. . . .
In addition, the Judicial Hearing Board may
recommend or the Supreme Court of Appeals may impose
any one or more of the following sanctions for a judge’s
violation of the Rules of Professional Conduct: (1) probation;
(2) restitution; (3) limitation on the nature or extent of future
practice; (4) supervised practice; (5) community service; (6)
admonishment; (7) reprimand; (8) suspension; or (9)
annulment.
See also In re Toler, 218 W.Va. 653, 625 S.E.2d 731 (2005).
In the matter sub judice, the Judicial Hearing Board concluded the evidence
established three separate and distinct violations of the Code of Judicial Conduct,
specifically Rules 4.1(A)(9), 4.2(A)(1), and 4.2(A)(4). The Board also found one
violation of the Rules of Professional Conduct, specifically Rule 8.2(a). The Hearing
Board recommended the following sanctions: (1) censure as a judicial candidate and as a
lawyer; (2) concurrent suspension from serving as a judge and from practicing law for
one year; (3) fine of $5,000 for each of the three Code of Judicial Conduct violations, for
a total of $15,000; and (4) payment of costs related to the three violations of the Code of
Judicial Conduct and one violation of the Rules of Professional Conduct.
Judge-Elect Callaghan objects to what he characterizes as excessive and
unjustified recommended sanctions. He contends that the dissemination of the flyer
played a very minor role in his successful campaign and maintains that a suspension is
not justified, arguing that admonishments, reprimands, censures, and fines have been
45
deemed more appropriate in other cases of this nature. The Office of Disciplinary
Counsel likewise disagrees with the Board’s recommended sanctions and asserts that the
severity of Judge-Elect Callaghan’s violations warrants the attorney and judicial
suspensions to be served consecutively, resulting in two years of suspension. Having
thoroughly evaluated all arguments asserted in the briefs of this matter, the
determinations of this Court are presented below.
1. Factors to be Examined in Determinations of Discipline
An extensive consideration of the appropriate discipline for Judge-Elect
Callaghan’s violations of both the Code of Judicial Conduct and the Rules of Professional
Conduct requires this Court to examine the factors enunciated in syllabus point three of
In re Cruickshanks, 220 W.Va. 513, 648 S.E.2d 19 (2007):
Always mindful of the primary consideration of
protecting the honor, integrity, dignity, and efficiency of the
judiciary and the justice system, this Court, in determining
whether to suspend a judicial officer with or without pay,
should consider various factors, including, but not limited to,
(1) whether the charges of misconduct are directly related to
the administration of justice or the public’s perception of the
administration of justice, (2) whether the circumstances
underlying the charges of misconduct are entirely personal in
nature or whether they relate to the judicial officer’s public
persona, (3) whether the charges of misconduct involve
violence or a callous disregard for our system of justice, (4)
whether the judicial officer has been criminally indicted, and
(5) any mitigating or compounding factors which might exist.
46
Utilizing the framework for analysis outlined in Cruickshanks, this Court
first finds that Judge-Elect Callaghan’s conduct relates directly to the administration of
justice and negatively impacts the public’s perception of the administration of justice.
Second, the behavior certainly relates directly to his public persona, through his efforts to
achieve professional gain by dissemination of false materials to the voting public. Third,
his actions demonstrate profound disrespect and disregard for our system of justice; his
intentional utilization of falsehoods subverts the very essence of the integrity of the
judicial system and casts serious doubt upon his fitness for a judicial position established
upon unbiased veracity and incorruptibility. 25
Continuing in our examination of the Cruikshanks factors, while we
recognize that Judge-Elect Callaghan has not been criminally indicted for his actions, we
must also examine other issues which might be considered as mitigating or aggravating
factors. The Hearing Board observed the following mitigating factors: Judge-Elect
Callaghan has not been the subject of prior disciplinary complaints; Judge Johnson had
referenced his seminar attendance on his campaign’s Facebook page; Judge-Elect
Callaghan acted quickly in taking corrective measures to address Disciplinary Counsel’s
25
The practice of intentional dissemination of false information to the public
strikes the very essence of fundamental judicial principles. “[D]eception is antithetical to
the role of a Judge who is sworn to uphold the law and seek the truth.” Matter of
Collazo, 691 N.E.2d 1021, 1023 (N.Y. 1998) (quotation omitted); see also William P.
Marshall, False Campaign Speech and the First Amendment, 153 U. Pa. L. Rev. 285, 287
(2004) (arguing that effects of false campaign speech “can be as corrosive as the worst
campaign finance abuses”).
47
concerns about the subject flyer; he expressed regret that the flyer had caused others
consternation; and he cooperated with Disciplinary Counsel in the investigation.
Upon de novo review by this Court, we find somewhat limited mitigation in
this case. A valid mitigating factor is Judge-Elect Callaghan’s lack of a prior disciplinary
record. Likewise, his cooperation with the investigation of the charges against him is a
mitigating factor; his full and free disclosure is laudable.
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.26 Nicholas County’s only newspaper was a weekly paper, and
the timing of the mailing prevented inclusion of any response or countermeasure in that
26
A somewhat similar circumstance was remarked upon in In re Hildebrandt, 675
N.E.2d 889 (Ohio 1997), noting “the record indicates that the advertisements in question
were timed to appear on radio and television two to three weeks prior to the election, thus
providing complainant little time to respond publicly to the misstatements or seek redress
prior to the election. . . .” Id. at 891.
48
paper.27 Thus, we find that the removal of the assertions from social media and the radio
statements are entitled to limited weight in mitigation.28
The Hearing Board references extensive aggravating factors, asserting that
Judge-Elect Callaghan acted with a selfish motive; some portion of the electorate may
perceive his actions as “stealing the election;” the charges relate to his standing as a
judicial officer who used false advertising to get elected and has implied that he will rule
in a manner that may impact the local coal industry; he created a false reality and
communicated it to the public through polling and campaign flyers; he timed the release
of the flyer in a manner which effectively eliminated Judge Johnson’s ability to “undo the
damage;” his remedial efforts used language that did not convey authentic regret; and he
used other campaign materials to disseminate false or misleading information.
Upon review, this Court is compelled to conclude that the record is replete
with examples of Judge-Elect Callaghan’s extremely limited remorse. Even in his
27
We note the inherent difficulty of responding to false speech in any instance,
even where time constraints are not present. False speech “interfere[s] with the truth-
seeking function of the marketplace of ideas, and [it] cause[s] damage . . . that cannot
easily be repaired by counterspeech, however persuasive or effective.” Hustler, 485 U.S.
at 52 (citing Gertz, 418 U.S. at 340, 344 n.9). It has also been observed that the “truth
rarely catches up with a lie.” Gertz, 418 U.S. at 344 n.9.
28
We do not find the other factor mentioned by the Board to be worthy of
appreciable consideration in mitigation of these violations. Judge Johnson’s reference to
his seminar attendance on his campaign’s Facebook page, while indeed relevant in
proving the truth of such attendance, in no manner reduces the impact of the violations at
issue.
49
meager attempt at mitigation, his comments potentially qualifying as retraction
demonstrated an absence of a thorough understanding of the inappropriateness of his
actions. In the radio ads, as referenced above, the following statement was made:
“[P]lease understand that the specific characterization of the White House visit may be
inaccurate and misleading and should not have been sent containing inappropriate
information. Candidate Callaghan apologizes for any misunderstanding or inaccuracies. .
. .” (Emphasis added). As the Supreme Court of Arizona appropriately remarked in In re
Augenstein, 871 P.2d 254 (Ariz. 1994), “[t]hose seeking mitigation relief based upon
remorse must present a showing of more than having said they are sorry.” Id. at 258
(quotation and alteration omitted).
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, stating
50
The Johnson campaign - I described before - they got
their mileage out of this flier. . . . [W]hen the retraction came
out, on Judge Johnson’s campaign Facebook page they
formed what I called the Callaghan lynch mob, and they
called me a liar, dishonest, unethical, despicable, dirty
politician - just anything you can think of. So they got their
mileage, not only out of the flier but out of my retraction in
calling me all those names. . . . I think I would’ve beat Judge
Johnson by more votes without that flier because of the
negative reaction that it got and the negative comments that
were created from it.
(emphasis added). Flippantly attempting to dismiss the voter effect of the direct-mail
flyer, he further testified “these fliers barely warrant a glance on the short trip from the
mailbox to the trash can,” allegedly quoting a local reporter.
As a further example of aggravating factors, the Hearing Board references
the alleged falsities contained in other campaign materials disseminated by Judge-Elect
Callaghan. The Board emphasizes that after he presented these flyers during the hearing
and sought to have them introduced into evidence, they were ultimately submitted as joint
exhibits. He was not, however, charged with any ethical violation based upon those
additional materials. Consequently, this Court does not base its determination of
appropriate discipline on the existence of those materials, either as actual violations or as
aggravating factors.29 While the Board seeks consideration of these matters as indicative
29
The utilization of uncharged allegations of misconduct as an aggravating factor
enhancing sanctions must be approached with caution, particularly in an arena in which
First Amendment rights to freedom to engage in campaign speech are asserted. As the
Supreme Court of Minnesota observed in In re Disciplinary Action against Tayari-
Garrett, 866 N.W.2d 513 (Minn. 2015), due process protections are implicated and
(continued . . .)
51
of a pattern of ethical misconduct, this Court finds it unnecessary to consider those
uncharged alleged violations to support or enhance the discipline imposed in this case.
Our conclusions are premised exclusively upon the four charges properly levied against
Judge-Elect Callaghan and proven by clear and convincing evidence.30
2. Precedential Analysis of Violations of Code of Judicial Conduct
Where violations of ethical rules occur, it is incumbent upon this Court to
impose appropriate sanctions. This Court has recognized that a determination of
discipline must be premised upon the unique facts of each individual case. See
McCorkle, 192 W.Va. 286, 452 S.E.2d 377. Mindful of the interplay between the roles of
lawyer and judge, this Court stated as follows in Karl:
It is important for us to emphasize that a judge is first
and foremost a lawyer. While acting as a lawyer, he or she is
charged with the knowledge or the standards of conduct
are weakened if the referee is permitted to consider uncharged
violations of the Minnesota Rules of Professional Conduct
under the guise of aggravating factors instead of requiring
that allegations of additional misconduct be brought in a
supplementary petition. However, we need not decide
whether the referee clearly erred by finding either of these
aggravating factors because their existence does not affect the
discipline we impose in this case.
Id. at 520 n.4.
30
If the Office of Disciplinary Counsel believes it is appropriate to formally
charge Judge-Elect Callaghan for the violations allegedly committed by the dissemination
of those additional materials, that office is competent to further investigate those matters,
based upon the guidance provided by this opinion.
52
defined in the West Virginia Rules of Professional Conduct.
While acting as a judge, he or she is charged with the
knowledge of the standards of conduct in the West Virginia
Code of Judicial Conduct. Any behavior that reveals the lack
of integrity and character expected of lawyers and judges
within these standards warrants discipline. The West Virginia
Rules of Professional Conduct and the West Virginia Code of
Judicial Conduct serve as a unified system of discipline
within the legal profession to achieve a common goal and that
is to uphold high standards of conduct to secure and enhance
the public’s trust and confidence in the entire judicial system.
192 W.Va. at 33, 449 S.E.2d at 287.
While this Court has not had occasion to evaluate ethical violations in a
factual scenario identical to the present case, we have encountered violations demanding
serious response. For purposes of our analysis of Judge-Elect Callaghan’s violations of
the Judicial Code of Conduct, our reasoning in prior judicial discipline cases is
instructive. In Watkins, for instance, this Court suspended a judge without pay for four
years “until his present term of office ends on December 31, 2016” for his repeated
intemperance with litigants and disrespect for authority. 233 W.Va. at 183, 757 S.E.2d at
607. This Court expressed grave concerns with the behavior of judges and the resultant
effect upon public perception of the judiciary.
Citizens judge the law by what they see and hear in courts,
and by the character and manners of judges and lawyers.
“The law should provide an exemplar of correct behavior.
When the judge presides in Court, he personifies the law, he
represents the sovereign administering justice and his conduct
must be worthy of the majesty and honor of that position.”
Matter of Ross, 428 A.2d 858, 866 (Maine 1981). Hence a
judge must be more than independent and honest; equally
important, a judge must be perceived by the public to be
53
independent and honest. Not only must justice be done, it
also must appear to be done.
Id. at 182, 757 S.E.2d at 606 (footnote omitted). Interestingly, in Watkins, this Court also
noted that more extensive disciplinary measures could have been imposed, based upon
the number of ethical violations committed. The Court observed:
The Hearing Board concluded that Judge Watkins had
committed 24 separate violations of nine separate Canons of
the Code of Judicial Conduct. Under the Rules of Judicial
Disciplinary Procedure, the Hearing Board noted that for
each violation it could recommend that this Court impose a
maximum penalty of suspension for one year and a fine of up
to $5,000, and that it could impose the penalties
consecutively. See Rule 4.12(4) and (5), Rules of Judicial
Disciplinary Procedure; Syllabus Point 5, In re Toler, 218
W.Va. 653, 625 S.E.2d 731 (2005). Hence, the Board could
have recommended a maximum sanction against Judge
Watkins of a 24-year suspension without pay plus a fine of
$120,000.
233 W.Va. at 173, 757 S.E.2d at 597.31 Under the particular facts in Watkins, however,
the Court determined that a four-year suspension was adequate discipline for the
violations.
In Toler, this Court suspended a magistrate for four years for sexual
misconduct in a prior term, thus suspending him beyond his term in office. 218 W.Va. at
31
By way of hypothetical analogy, a reviewing body might consider the violations
herein charged to be premised upon each separate action, i.e., each posting and each item
mailed. Similarly, charges possibly could have been calculated based upon the number
of false assertions encompassed within the subject flyer. This Court addresses the
charges as levied against Judge-Elect Callaghan by the Board and passes no judgment
upon the efficacy or validity of alternate methods of calculation.
54
662, 625 S.E.2d at 740. We found four separate and distinct acts and suspended the
magistrate one year for each, to run consecutively. Sanctioning the magistrate for each
violation was deemed essential, based upon the following reasoning:
Having found that Mr. Toler did, in fact, violate the Code of
Judicial Conduct on at least four different occasions, in four
completely separate and distinct situations, and against four
separate individuals, it simply would make little or no sense
to find in any other manner than to impose sanctions against
Mr. Toler for each of the separate violations and to impose
such sanctions consecutively. Given the nature and extent of
the misconduct in this case, to rule otherwise would diminish
public confidence in the judiciary, impugn the judicial
disciplinary process, and would have a chilling effect on the
willingness of victims of domestic violence to seek help from
the judicial system.
Id. at 661, 625 S.E.2d at 739. “To hold a violator of the Code of Judicial Conduct who
has committed only one offense to the same exact standard and subject that offender to
the same sanctions as a violator who has committed four, five, or fifty separate acts of
misconduct would suggest unreasonable disparate treatment. . . .” Id. The Court
explained that it “must give proper consideration and weight to the severity of each of the
independent acts of judicial misconduct when deciding appropriate sanctions.” Id.
In In re Wilfong, 234 W.Va. 394, 765 S.E.2d 283 (2014), this Court
imposed a two-year suspension, censure, and costs upon a judge who maintained an
extra-marital affair with a corrections program director who regularly appeared in her
court. In ruling on that issue, this Court explained:
[T]his Court adopts the Hearing Board’s finding that the
judge committed eleven violations of seven Canons. The
55
judge demeaned her office, and significantly impaired public
confidence in her personal integrity and in the integrity of her
judicial office. As a sanction, we hold that the judge must be
censured; suspended until the end of her term in December
2016; and required to pay the costs of investigating and
prosecuting these proceedings.
234 W.Va. at 397, 765 S.E.2d at 286.
As argued by Judge-Elect Callaghan and acknowledged by the Hearing
Board and Office of Disciplinary Counsel, judicial campaign ethical violations, in this
and other jurisdictions, have often resulted in minimal disciplinary measures, sometimes
consisting only of fines, reprimands, or censures. For instance, in In the Matter of
Codispoti, 190 W.Va. 369, 438 S.E.2d 549 (1993), this Court censured a magistrate for
his direct involvement in his wife’s campaign and for misleading advertisements
appearing in a local newspaper. This Court found, however, an absence of clear and
convincing evidence that the magistrate caused the advertisement to be published and
therefore found that censure was an adequate sanction. Id. at 373, 438 S.E.2d at 553; see
also Matter of Tennant, 205 W.Va. 92, 516 S.E.2d 496 (1999) (admonishing candidate
for magistrate for solicitation of campaign funds); Starcher, 202 W.Va. 55, 501 S.E.2d
772 (admonishing judge for personally soliciting campaign contributions).
In our review of cases involving multiple facets of judicial discipline, we
find the rationales employed in those cases instructive on principles underlying
disciplinary determinations. In In re Renke, 933 So. 2d 482 (Fla. 2006), for example, a
successful judicial candidate was removed from office for “knowingly and purposefully”
56
making material misrepresentations in his campaign brochures, among other violations.
Id. at 487. The Supreme Court of Florida reasoned:
[T]o allow someone who has committed such misconduct
during a campaign to attain office to then serve the term of
the judgeship obtained by such means clearly sends the wrong
message to future candidates; that is, the end justifies the
means and, thus, all is fair so long as the candidate wins. . . .
In our decision to remove Judge Renke, we have concluded
that the series of blatant, knowing misrepresentations found in
Judge Renke’s campaign literature and in his statements to
the press amount to nothing short of fraud on the electorate in
an effort to secure a seat on the bench. . . . [W]e hold that
regardless of Judge Renke’s present abilities and reputation as
a judge, one who obtains a position by fraud and other serious
misconduct, as we have found Judge Renke did, is by
definition unfit to hold that office. . . . [T]hose who seek to
assume the mantle of administrators of justice cannot be seen
to attain such a position of trust through such unjust means.
Id. at 495 (citations and internal quotations omitted);32 see also In re McMillan, 797 So.
2d 560 (Fla. 2001) (successful judicial candidate removed, in part, for unfounded attacks
on opponent and local court system).
32
In Renke, the Supreme Court of Florida also addressed a matter it had evaluated
ten years prior to the Renke matter. Its discussion of that prior case is illuminating on the
issue of progression of legal reasoning and sanctioning ability. In In re Alley, 699 So. 2d
1369 (Fla. 1997), allegations of violations had been asserted against a candidate for
judicial office, charging Judge Alley “with knowingly misrepresenting her qualifications
and those of her opponent in her campaign literature, including mailers and newspaper
advertisements.” Renke, 933 So. 2d at 494. The court, in a very brief Alley opinion,
imposed only a public reprimand as discipline, based upon its limitations with regard to
altering the recommendations of the Judicial Qualifications Commission. Alley, 699
So. 2d at 1370. In Renke, the court took the opportunity to explain that it had been
“constrained by the language . . . regarding our ability to modify the . . . proposed
discipline” at the time of the Alley decision. 933 So. 2d at 494. The court in Renke
(continued . . .)
57
In Tamburrino, the Ohio Supreme Court suspended an unsuccessful judicial
candidate from the practice of law for one year, with six months stayed, based upon false
television advertisements, emphasizing “[t]his case does not involve false statements to
merely make Tamburrino appear as though he had better credentials or more
endorsements” as in several other arguably comparable judicial ethics cases. 2016 WL at
*11. Rather, Tamburrino, similar to Judge-Elect Callaghan in the present situation, “used
false statements to impugn the integrity of his opponent.” Id. “Tamburrino’s misconduct
impugned the integrity of his opponent as a jurist and as a public servant.” Id. at *12; see
also In re Kinsey, 842 So. 2d 77 (Fla. 2003) (reprimanding and fining judicial candidate,
in part, for attacking opponent’s handling of cases and presenting herself as pro-police
and anti-criminal); In re Baker, 542 P.2d 701 (Kan. 1975) (censuring judicial candidate
for authorizing campaign flyer containing false assertions regarding opponent’s
retirement eligibility); In re Freeman, 995 So. 2d 1197 (La. 2008) (suspending justice of
the peace without pay for remainder of term for failing to resign judicial office before
becoming candidate for non-judicial office); In Matter of Fortinberry, 708 N.W.2d 96
(Mich. 2006) (censuring judicial candidate for falsely accusing opponent of having illicit
affair with law clerk and asserting that candidate’s wife was thereafter found dead in
observed that, in Alley, it had expressed “our frustration with the recommended discipline
in that case, regarding violations similar to the ones we face today, stating, [in Alley], ‘we
find it difficult to allow one guilty of such egregious conduct to retain the benefits of
those violations and remain in office.’” Renke, 933 So. 2d at 494 (quoting Alley, 699
So. 2d at 1370). Thus, in Renke, the court stated: “Today we make clear that those
warnings cannot be ignored by those who seek the trust of the public to place them in
judicial office.” Renke, 933 So. 2d at 495.
58
home); In re Burick, 705 N.E.2d 422 (Ohio 1999) (reprimanding and fining judicial
candidate, in part, for misrepresenting facts about opponent in campaign
communications); Hildebrandt, 675 N.E.2d at 892 (suspending judicial candidate for six
months, with suspension stayed, and placing on probation for six months subject to
candidate’s compliance with terms of order, including public apology, for falsely
accusing opponent of running for judge and for Congress).
3. Precedential Analysis of Violations of Rules of Professional Conduct
Our analysis of Judge-Elect Callaghan’s violation of the Rules of
Professional Conduct is also guided by our prior decisions of appropriate discipline of
attorneys for false statements. In Committee on Legal Ethics of West Virginia State Bar
v. Farber, 185 W. Va. 522, 408 S.E.2d 274 (1991), this Court suspended an attorney for
three months, with readmission conditioned upon having a supervising lawyer for a
period of two years. The attorney had misrepresented facts in a motion to disqualify a
circuit judge and had made false accusations against the judge. 185 W.Va. at 525, 408
S.E.2d at 277. Similarly, in Lawyer Disciplinary Board v. Turgeon, 210 W.Va. 181, 557
S.E.2d 235 (2000), this Court suspended a lawyer for two years, in part, for falsely
accusing a judge of manufacturing evidence and cooperating with the prosecution against
a client. In Hall, this Court suspended an attorney for three months for falsely accusing
an Administrative Law Judge of racial bias and unethical behavior. 234 W. Va. 298, 765
S.E.2d 187.
59
The discussion of such violations by other jurisdictions is also instructive.
See In re Becker, 620 N.E.2d 691 (Ind. 1993) (suspending attorney thirty days for false
claims against judge); In re Ireland, 276 P.3d 762 (Kan. 2012) (suspending lawyer two
years for accusing judge of improper sexual behavior during mediation); Kentucky Bar
Assoc. v. Waller, 929 S.W.2d 181 (Ky. 1996) (suspending lawyer six months for calling
judge lying incompetent ---hole); In re Mire, 197 So. 3d 656 (La. 2016) (suspending
lawyer one year and one day with six months deferred by two years’ probation for saying
judge was incompetent); In re McCool, 172 So. 3d 1058 (La. 2015) (disbarring lawyer for
orchestrating media campaign based on false or misleading information in effort to
intimidate judge); Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn. 1990)
(suspending lawyer sixty days for accusing judge, magistrate, and attorneys of
conspiracy); Mississippi Bar v. Lumumba, 912 So. 2d 871 (Miss. 2005) (suspending
lawyer six months for saying judge had temperament of barbarian); Disciplinary Counsel
v. Shimko, 983 N.E.2d 1300 (Ohio 2012) (imposing one year stayed suspension on
lawyer who repeatedly questioned judge’s impartiality); Moseley v. Virginia State Bar,
694 S.E.2d 586 (Va. 2010) (suspending lawyer six months, in part, for making false
comments about judge).
4. Sanctions for Judge-Elect Callaghan’s Violations
In this Court’s analysis of the present matter and our determination of
appropriate sanction, we recognize the limited precisely comparable precedent. Based
upon our review of numerous infractions involving assertions of false statements by
60
judges and attorneys, however, we find it imperative to consider that Judge-Elect
Callaghan did not simply misrepresent himself or issues such as his own qualifications or
endorsements, his professional competence, or his campaign’s monetary contributions.
Rather, he directly and methodically targeted an opponent with fabricated material and
disseminated it to the electorate. The perceived vulnerabilities in the opponent’s
campaign were exploited, based upon polls and research conducted on behalf of Judge-
Elect Callaghan and with his approval. As Mr. Heflin explained the strategy, the attempt
was “to create a piece of - - something humorous and something that would help create
the theatre of the mind we were looking for.”
Subsequent to thorough evaluation of this matter, this Court finds clear and
convincing evidence of the violations set forth by the Board and adopts its
recommendations, with modification. For his violation of Rule 4.1(A)(9), Rule
4.2(A)(1), and Rule 4.2(A)(4) of the Code of Judicial Conduct, we find that Judge-Elect
Callaghan should be suspended for two years, without pay, from his position as Judge of
the 28th Judicial Circuit.33 For his violation of Rule 8.2(a) of the Rules of Professional
Conduct, we find that Judge-Elect Callaghan should be reprimanded.
33
The finding of three separate and distinct violations of the Code of Judicial
Conduct could warrant a three-year suspension under Rule 4.12 of the West Virginia
Rules of Judicial Disciplinary Procedure. Based upon our assessment of the various
elements of Judge-Elect Callaghan’s conduct, as well as aggravating and mitigating
factors, we find a two-year suspension is adequate and warranted by the severity of the
conduct. We also note that article VIII, section 7 of the West Virginia Constitution
(continued . . .)
61
The imposition of this discipline, both suspension as a judge and reprimand
as an attorney, is warranted by the severity of Judge-Elect Callaghan’s conduct. The
Court acknowledges the obligation to “respect and observe the people’s categorical right
to choose their own judges, and to avoid interfering with that right except for manifest
violations of the Code of Judicial Conduct.” Turco, 970 P.2d at 740. However, we find
manifest violations have been committed in this case.34 We have also observed “it is
sometimes appropriate to discipline a judge both as a judge and as a lawyer for the same
misconduct.” Matter of Troisi, 202 W. Va. 390, 397, 504 S.E.2d 625, 632 (1998). This
precept is artfully explained in In re Mattera, 168 A.2d 38 (N.J. 1961): “A single act of
misconduct may offend the public interest in a number of areas and call for an
appropriate remedy as to each hurt. . . . The remedies are not cumulative to vindicate a
single interest; rather each is designed to deal with a separate need.” Id. at 42. As this
prohibits a circuit court judge from practicing law during his term. See also McDowell v.
Burnett, 75 S.E. 873, 878 (S.C. 1912) (suspension is “the mere temporary withdrawal of
the power to exercise the duties of an office.”).
34
The significance of the elevated public position of a judge cannot be overstated.
“Because their misconduct is undeniably more harmful to the public’s perception of both
the legal profession and the judiciary as a whole, judges must maintain standards of
personal and professional care beyond that of regular attorneys.” In re Coffey’s Case,
949 A.2d 102, 129 (N.H. 2008). “Without judges who follow the law themselves, the
authority of the rule of law is compromised.” Id. at 132 (Galway, J., dissenting). In
disagreeing with the majority’s decision to impose a three-year suspension for Coffey’s
fraudulent conveyances and arguing for imposition of an indefinite suspension, the
dissent posits: “Simply put, when one whose job it is to enforce the law, instead interferes
with and disregards the law to her own benefit, the public rightfully questions whether
the judicial system itself is worthy of respect.” Id. at 130 (Galway, J., dissenting).
62
Court has stated: “In cases of judicial misconduct, more than a single interest is
implicated.” Troisi, 202 W. Va. at 397, 504 S.E.2d at 632.35
Judge-Elect Callaghan’s conduct violated fundamental and solemn
principles regarding the integrity of the judiciary. 36 His egregious behavior warrants
substantial discipline.37 While this Court remains mindful that sanctions are not for the
purpose of punishment, this Court must impose discipline in appropriate measure to
“instruct the public and all judges, ourselves included, of the importance of the function
performed by judges in a free society.” Karl, 192 W.Va. at 34, 449 S.E.2d at 288
(internal quotations omitted). Moreover, “[a]ny sanction must be designed to announce
publicly our recognition that there has been misconduct; it must be sufficient to deter the
individual being sanctioned from again engaging in such conduct and to prevent others
from engaging in similar misconduct in the future.” Id. (internal quotations omitted).
We acknowledge Judge-Elect Callaghan’s contention that significant sanctions would
have “a devastatingly chilling effect on lawyers pondering the idea of running for a
judicial office.” In that vein, we sincerely expect that these sanctions will indeed have a
35
See also Frank D. Wagner, Annotation, Misconduct In Capacity As Judge As
Basis For Disciplinary Action Against Attorney, 57 A.L.R. 3d 1150 (1974).
36
“[H]onesty is the base line and mandatory requirement to serve in the legal
profession.” Iowa Supreme Ct. Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 465
(Iowa 2014) (internal citations omitted).
37
If Judge-Elect Callaghan had not been elected to the judicial seat, our
consideration of the discipline to be imposed under the Rules of Professional Conduct
may have differed.
63
devastatingly chilling effect on lawyers pondering the idea of disseminating falsifications
for the purpose of attaining an honored position of public trust.
IV. CONCLUSION
This Court imposes the following discipline upon Judge-Elect Callaghan:
1. Judge-Elect Callaghan is reprimanded for violation of Rule 8.2(a) of
the Rules of Professional Conduct.
2. Judge-Elect Callaghan is forthwith suspended for two years, without
pay, from his office as judge of the 28th Judicial Circuit, for his violations of Rules
4.1(A)(9), 4.2(A)(1), and 4.2(A)(4) of the Code of Judicial Conduct.
3. Judge-Elect Callaghan is ordered to pay a $5,000 fine per violation
of the Code of Judicial Conduct, for a total of $15,000 fine.
4. Judge-Elect Callaghan is ordered to pay all costs associated with the
investigation, prosecution, and appeal of the violations proven in these proceedings.
The Clerk of this Court is ordered to issue the mandate forthwith.
Suspension without pay and other sanctions ordered.
It is so Ordered.
64