A judicial disciplinary board on Tuesday recommended that the West Virginia Supreme Court bar the Nicholas County circuit judge-elect from taking the bench for a year.
The state Judicial Hearing Board also recommends that circuit judge-elect Stephen Callaghan, who faces ethics charges for allegedly using shady campaign tactics during the May primary, be suspended for a year from practicing law.
"In summary, the Board recommends that [Callaghan] be censured as a judicial candidate and reprimanded as a lawyer; that [Callaghan] be suspended as from serving as a judge and practicing as a lawyer for concurrent period of one-year," wrote Circuit Judge Lawrance Miller Jr., who chairs the Judicial Hearing Board.
After running a smear campaign against longtime Nicholas Circuit Judge Gary Johnson, Callaghan, a Summersville lawyer, defeated Johnson by 220 votes. Judicial races in West Virginia were nonpartisan for the first time this year and, therefore, were decided during the May primary. Johnson has been a judge 23 years.
In August, the West Virginia Judicial Investigation Commission charged Callaghan with violating the rules judges and judicial candidates are required to abide by.
About a week before the primary election, Callaghan sent out a flier to Nicholas County voters purporting to show Johnson partying with President Barack Obama. The ethics charges claim the fliers were meant to "deceive voters into believing that Judge Johnson and U.S. President Barack Obama were drinking beer and partying at the White House while conniving with one another to kill coal mining jobs in Nicholas County."
Justices should also order Callaghan to pay $15,000 and pay for the cost of the proceedings against him, the hearing board's filing states.
An order filed in the Supreme Court clerk's office gives parties until noon today to file any objections to the hearing board's recommendations.
The state's Code of Judicial Conduct "clearly provides," Miller wrote, citing the code, that "a judicial candidate shall not ... knowingly, or with reckless disregard for the truth, make any false or misleading statement," and, he added, "the evidence indicates that even though perhaps not 'knowingly' or 'with reckless disregard for the truth,' [Callaghan] was negligent in campaign statements that were materially false and misleading."
Charleston lawyer Lonnie Simmons, who represents Callaghan, has said his client didn't make false or misleading statements about Johnson. Arguments were held last week between Callaghan and Simmons and lawyers with the state Judicial Disciplinary Counsel.
The disciplinary counsel recommended that the hearing board suspend Callaghan from taking the bench for two years. The agency requested the hearing board recommend to justices that Callaghan's law license be suspended for a year and, then after that year, that he be suspended without pay for a year from taking the oath of judicial office. The disciplinary lawyers also wanted Callaghan to be fined $2,500.
Callaghan filed a lawsuit in federal court against the disciplinary officials accusing him of misconduct. Callaghan has asked U.S. District Judge Thomas Johnston to put a stop to the disciplinary case against him and find that the ethics charges he faces violate his First Amendment rights.
Simmons, who also represents Callaghan in federal court, has asked Johnston to find several of the rules judges are required to abide by unconstitutional, such as prohibiting political speech and campaign activities.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.