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April 2017 - Party Time

by Richard W. Millar, Jr.

It is the age-old controversy: should we elect judges or appoint them? We want to keep politics out of judicial elections, but we do not and most likely cannot. In some states, election candidates proudly promote their political party. In California, party affiliation is not mentioned, but we generally know where they stand on the spectrum and, let’s face it, it is almost impossible for a civil lawyer to win an election over a prosecutor with a record of putting away the bad guys. So here, the majority of judges are appointed by the governor. Which is fine until some governor appoints a jerk whose sole qualification is membership in the governor’s party.

To the victor go the spoils and, in some cases, the public gets the spoiled.

Now to those of you whose sensitivity antennae are on high alert, this is not a diatribe. Or at least not the diatribe you think it might be.

California’s system is not perfect. It may be as good as it gets, at least in the sense of the best qualified judiciary. But it deprives us of the entertainment an imaginative judicial campaign may bring, particularly when assisted by the wonders of Photoshop. And that, boys and girls, is a true deprivation.

Take, for example, a recent election campaign in West Virginia. Please.

“Judge-Elect,” (and that’s a spoiler alert of the highest order) Stephen Callaghan filed candidacy papers to run against Judge Gary L. Johnson in early 2016. On the advice of his political consultant, a gentleman employed by, and I am not making this up, Rainmaker, Inc., his campaign sent out a survey to, in part, “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 policies.”

A Gallup poll at the time showed President Obama had a 72% disapproval rating in West Virginia. There were no poll results for child trafficking but the assumption was that trafficking disapproval rates were right up there with the president’s. If the two could be tied together, that would be a “Bingo.”

For those of you who may think that the connection between an unpopular president and child trafficking may be just a wee bit attenuated, keep in mind what you learned in geography class.

West Virginia was the recipient of three Court Improvement Grants (which is interesting all by itself, but I digress) which required the state to send a representative to the conference. At the time, Judge Johnson was the Chair of the West Virginia CIP and was thus chosen to attend.

Fearful that local voters might not “connect the dots” between human trafficking and the president, Rainmaker created a direct-mail flyer with a “photoshopped” picture of Judge Johnson and the president against a backdrop of party streamers with the president holding a glass of beer. It was captioned “Barack Obama & Gary Johnson Party at the White House . . .” [Ellipses in original] .

The obverse of the photo had a mock-up of a layoff notice pointing out a 76% drop in coal-mine employment while “Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda.” [Italics in original] .

Sort of “Nero fiddled while Rome burned,” except that analogy might have escaped the target voters.

It should come as no surprise, even if you hadn’t noticed my spoiler alert, that Mr. Callaghan became Judge-Elect Callaghan. By 227 votes. Out of a total of 6,717.

It didn’t end there, however. In July 2016, the disciplinary body issued formal charges against newly elected Judge Callaghan. The board recommended discipline and the case ended up before the Supreme Court of Appeals for West Virginia.

I am not sure why it took the court sixty-four pages to conclude that Judge Callaghan violated rules, but it reprimanded him, suspended him (as a judge) without pay for two years, ordered a fine of $15,000 and to pay the costs of investigation, etc. I guess that just goes to show that while:

A picture may be worth a thousand words; it is worth more if it is photoshopped.

Richard W. Millar, Jr. is a member of the firm of Friedman Stroffe & Gerard, P.C. in Newport Beach. He can be reached at rmillar@fsglawyers.com.

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