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West Virginia Supreme Court Suspends A Judicial Candidate For False Statements In Campaign Materials

This disciplinary proceeding stemmed from allegedly false statements contained in a campaign-issued flyer disseminated while Stephen O. Callaghan, Judge-Elect of the 28th Judicial Circuit was a candidate for Judge of the 28th Judicial Circuit. The West Virginia Judicial Hearing Board recommended that 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. The Supreme Court adopted the Board’s recommended discipline, with modification, and found that it was 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, and reprimand as an attorney, holding (1) there was clear and convincing evidence of improper conduct presented in support of each of the violations found by the Board; and (2) Judge-Elect Callaghan’s constitutional arguments were unavailing.

Source: In re Hon. Stephen O. Judge-Elect Callaghan :: 2017 :: Supreme Court of Appeals of West Virginia Decisions :: West Virginia Case Law :: West Virginia Law :: U.S. Law :: Justia

This is one of an increasing number of cases where a judicial candidate is disciplined for making false statements about an opponent. Here the allegedly false statements worked and the candidate won the election. What triggered the ire of the West Virginia Courts was the particular nature of the statements. The materials juxtaposed statements about President Obama and lost coal jobs with a misleading allegation that the incumbent had attended a legal seminar in Washington D.C. The West Virginia Supreme Court describes the “survey” in this fashion:

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.”

The claim was misleading because the incumbent judge had attended a federal child trafficking seminar in Washington at the request of the West Virginia judiciary. The respondent also sent out a flyer which photoshopped images of President Obama with the incumbent judge and implied that the judge was an Obama supporter and supported the Obama administration’s actions against the coal industry.

These survey and the flyers merited a two-year suspension of the respondent.

My thoughts are that when you become an attorney you give up some of your rights to free speech. You are required to comply with the Rules of Professional Conduct. This means that a false ad that would be tolerated in a typical political campaign is not tolerated in a judicial campaign.

Edward X. Clinton, Jr.

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