In re Wilfong

• Decision Date: 30 October 2014
• Docket Number: No. 14–0379.,14–0379.
• Citation: 765 S.E.2d 283,234 W.Va. 394
• Court: West Virginia Supreme Court
• Parties: In the Matter of Jaymie Godwin WILFONG, Judge, 20th Judicial Circuit.

234 W.Va. 394

765 S.E.2d 283

In the Matter of Jaymie Godwin WILFONG, Judge, 20th Judicial Circuit.

No. 14–0379.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 21, 2014.

Decided Oct. 30, 2014.

Rachael L. Fletcher Cipoletti, Esq., David A. Jividen, Esq., Office of Disciplinary Counsel, Charleston, WV, Special Judicial Disciplinary Counsel.

David A. Sims, Esq., Law Offices of David A. Sims, PLLC, Vienna, WV, Harry G. Deitzler, Esq., Hill, Peterson, Carper, Bee & Deitzler, PLLC, Charleston, WV, Counsel for Judge Wilfong.

Opinion

KETCHUM, Justice:

In this judicial disciplinary proceeding, a circuit court judge admits that she had an affair with a local man for over two years, and concealed the relationship from her husband and the man's wife. The judge deliberately intertwined the affair with her judicial office, and eventually involved her staff, courthouse employees, the prosecuting attorney's office, and local lawyers in concealing the affair. Further, the circuit court judge's paramour and his subordinates routinely appeared in criminal cases on the prosecuting attorney's behalf in her courtroom. The judge never revealed her relationship to any defendant or any other litigant even though she knew she was ethically bound to do so. She only admitted to the relationship when she learned that other lawyers were contemplating filing complaints against her with the Judicial Investigation Commission.

Eventually, the circuit court judge stipulated to some of the facts relevant to the affair. The circuit court judge also agreed not to contest some of the disciplinary charges against her because, as the Judicial Hearing Board found, “it was not credible to do so.”

The evidence before the Hearing Board established a clearly articulable nexus between the judge's extrajudicial misconduct and her judicial duties. The Hearing Board determined that the circuit court judge's conduct constituted eleven separate violations of seven Canons of the Code of Judicial Conduct, and recommended she be severely sanctioned. The circuit court judge now appeals, arguing that there is insufficient proof to support five of the eleven violations, and arguing that the recommended sanctions are too severe.

As set forth below, this Court adopts the Hearing Board's finding that the judge committed eleven violations of seven Canons. The 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.

I.FACTUAL AND PROCEDURAL BACKGROUND

Jaymie Godwin Wilfong is a circuit court judge in Randolph County (which is formally titled the Twentieth Judicial Circuit). She was elected as a circuit judge in 2008, and her present term ends on December 31, 2016. Judge Wilfong is the only circuit court judge in the county.¹

A. The Affair

This disciplinary matter involves five separate complaints filed against Judge Wilfong with the Judicial Investigation Commission. All five complaints center upon an extramarital affair that she had with William Travis Carter. The romantic and sexual relationship began between August and October 2011 and continued until October 2013.² Judge Wilfong also sent sexually explicit e-mails, texts, instant messages, and nude photos of herself to Mr. Carter. Both Judge Wilfong and Mr. Carter were married to other individuals.

Judge Wilfong stipulated to most of the general factual allegations that follow before the Judicial Hearing Board that reviewed the five complaints.

Throughout the extramarital affair, Mr. Carter was the director of the board of the North Central Community Corrections program (“NCCC”). NCCC was, in part, established and supervised by the Randolph County Commission. By law, Judge Wilfong served as a non-voting member of the NCCC board.³ She regularly attended NCCC board meetings, and participated in establishing operating budgets for Mr. Carter's office and Mr. Carter's salary. During the affair, Judge Wilfong also persuaded the county commission to supply Mr. Carter with a four-wheel-drive vehicle.

The NCCC program supervises criminal defendants who have been released from incarceration (both before and after conviction), and assists in their monitoring and transition into the community. Defendants must pay a fee to the NCCC board to participate in the program.⁴ Approximately 40% of the defendants who are indicted on a felony charge in Randolph County, and who are given pretrial bond release, are ordered by the circuit court judge to use the NCCC program.

The parties established that, from October 2011 until October 2013, Mr. Carter and/or his subordinate staff⁵ from the NCCC noted an appearance before Judge Wilfong in her courtroom in at least 46 criminal matters.⁶ Mr. Carter or the subordinate staff member appeared in the courtroom ready to offer testimony to Judge Wilfong to evaluate whether a criminal defendant was a candidate for alternative sentencing at NCCC, or to evaluate whether a participating defendant violated the terms of placement at NCCC. There were at least two occasions when members of Mr. Carter's NCCC staff gave sworn testimony about criminal defendants before Judge Wilfong.

Judge Wilfong never disclosed her intimate relationship with Mr. Carter, and therefore her inherent conflict of interest, on the record to any of the parties in the above-referenced criminal matters. The record establishes that she knew of the inherent conflict. For instance, in July 2013, Mr. Carter was scheduled to testify in a probation revocation proceeding before Judge Wilfong. Knowing it would be improper for her to hear Mr. Carter's testimony, and not wanting to disclose her secret affair, Judge Wilfong sent a text message to Mr. Carter. She told Mr. Carter to call the prosecuting attorney (because she could not do so) and, without stating why, ask for permission to have a subordinate testify in his place. Subsequently, Mr. Carter's subordinate testified in the case.

Judge Wilfong did disclose the relationship to her long-time judicial secretary, to her law clerk, and to a probation officer, all of whom were court employees. By doing so, she placed her court staff in the position of having to be deceptive and explain away her relationship with Mr. Carter. Judge Wilfong now concedes that she violated her responsibilities as their immediate supervisor.

The parties agree that Judge Wilfong used her judicial chambers during the course of the business day to carry on her affair with Mr. Carter. She conceded that she performed sexual acts with Mr. Carter in her judicial chambers. Court personnel witnessed Mr. Carter entering and exiting Judge Wilfong's chambers from a non-public entrance. At times when the two were alone in chambers, court personnel would find it necessary to knock on the door and interrupt Judge Wilfong's activities in order to insist that she continue with the daily court proceedings.

By Judge Wilfong's actions, courthouse personnel were placed in the uncomfortable position of having to keep Judge Wilfong's secret and explain away the circumstances surrounding the appearance of Judge Wilfong's relationship with Mr. Carter.

Judge Wilfong also enlisted two local lawyers to further her sexual and romantic contact with Mr. Carter. Judge Wilfong repeatedly requested the use of and utilized the personal residence of the first lawyer, Lori A. Haynes, to secretly meet with Mr. Carter. At the same time, Ms. Haynes routinely appeared in Judge Wilfong's courtroom, usually representing criminal defendants in felony matters. In some of those cases, Mr. Carter and his staff were called upon to offer opinions about a defendant's placement (or revocation of placement) in NCCC. Further confusing matters, while the affair was ongoing, Ms. Haynes began working as an assistant prosecutor in the office of the Randolph County Prosecuting Attorney, where she continued to use NCCC's services in sentencing criminal defendants. Judge Wilfong not only never disclosed her intimate relationship with Mr. Carter, she also never disclosed to any defendants, litigants, or other attorneys (including the prosecuting attorney) that she used Ms. Haynes to further and conceal that relationship.

The second lawyer, Phillip S. Isner, testified that Judge Wilfong asked for and received Mr. Isner's garage door opener so she could surreptitiously meet Mr. Carter. In the same time period, Mr. Isner appeared in Judge Wilfong's courtroom and represented criminal defendants in several felony matters where Mr. Carter and his staff were called upon to offer opinions. To repeat, Judge Wilfong never disclosed her secret arrangement with Mr. Isner to any of the other lawyers or litigants in her courtroom, including the prosecuting attorney.

It now appears that, between October 2011 and October 2013, Judge Wilfong was repeatedly made aware that her actions raised ethical problems. For instance, Mr. Isner—the lawyer who loaned her his garage door opener—testified he privately advised Judge Wilfong that she needed to publicly disclose her relationship with Mr. Carter because of the potential ethical issues presented. In January 2012, the judge's law clerk learned of the relationship and apparently recognized the ethical issues, but Judge Wilfong then lied and told the law clerk the relationship had ended. The Supreme Court Administrator heard rumors of the relationship and, on April 11, 2013, contacted Judge Wilfong to discuss the ethical implications on her judicial office. Lawyer Stephen G. Jory, a former U.S. Attorney and former chairman of the Lawyer Disciplinary Board, also discussed hearing rumors of the relationship with Judge Wilfong in April 2013. Judge Wilfong subsequently represented to the Supreme Court Administrator and to Mr. Jory that the relationship had ended.

B. The Filing of Complaints

In...