In The Matter of: Jaymie Godwin Wilfong, Judge ( 2014 )

No. 14-0379 - In the Matter of: Jaymie Godwin Wilfong, Judge, 20th Judicial Circuit
FILED
October 30, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LOUGHRY, Justice, concurring, in part, and dissenting, in part:
While I concur with the fully-justified suspension of Judge Wilfong for the
remainder of her term in office, I staunchly disagree with the majority’s unsubstantiated
refusal to impose the recommended $20,000.00 fine against her. If this Court will not deliver
justice to the citizens whose county has been compromised by the malfeasance of their
highest ranking judicial officer, who will? Not only was Judge Wilfong the county’s highest
judicial officer, but she served for more than two years on the Judicial Hearing Board,
passing judgment on fellow members of the judiciary while engaged in the very conduct that
led to the disciplinary stripping of her judicial robe. “[I]t is, ‘emphatically, the province and
duty of the judicial department, to say what the law is.’ But then the question arises ‘Who
shall keep the keepers?’ Who shall be responsible for putting the judiciary’s house in order?”
Matter of Del Rio, 256 N.W.2d 727, 753 (Mich. 1977) (citations omitted). The majority, or
so it appears, is more concerned with minimizing sanctions to a single public official than
ensuring that the entirety of the Randolph County judiciary is in order.
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I wish to be clear that this case is not about an extra-marital affair and its moral
implications. Instead, this disciplinary matter arose as a result of Judge Wilfong’s utter
failure to uphold the integrity of her judicial office and to avoid the appearance of
impropriety and bias–both real and perceived. “Because public confidence in judges is
essential to maintaining the legal system, ‘misconduct by a judge brings the office into
disrepute and thereby prejudices the administration of justice.’” In re Williams, 777 A.2d
323, 330 (N.J. 2001) (quoting In re Winton, 350 N.W.2d 337, 340 (Minn.1984)). Judge
Wilfong chose to participate in an extra-marital affair that was tied not only by time and
space to her judicial chambers, but permeated the very fabric of her judicial duties. “The
Canons of Judicial Conduct are standards measuring fitness for judicial office and therefore
embrace tests of behavior relating to integrity and propriety that condemn actions in which
the average citizen can freely indulge without consequence.” In re Douglas, 382 A.2d 215,
219 (Vt. 1977). Despite her counsel’s protestation that she was “seduced and taken
advantage of,” the record makes patently obvious that Judge Wilfong used her position and
power to engage in, facilitate, and, more importantly, conceal an extra-marital affair that
unquestionably compromised her impartiality.
Judge Wilfong engaged in an extra-marital affair lasting more than two years
with an individual (“Mr. Carter”) who personally, and through his subordinates, regularly
appeared before her in connection with the sentencing of criminal defendants to the program
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he oversaw. During the period of their affair, Mr. Carter and/or his subordinates participated
in forty-six separate criminal cases in front of Judge Wilfong. Moreover, she used her
position as an intermediary with the county commission to obtain a vehicle for Mr. Carter,
to influence his spending authority, and to maintain his job security, advising the county
commission that she would not utilize the program unless Mr. Carter was the Executive
Director.
Not only did her actions demonstrate a bold disregard for the Code of Judicial
Conduct, but they equally evidence a wholesale lack of respect for her colleagues and fellow
officers of the court in Randolph County. To facilitate and conceal this affair, she confided
in her own subordinates and fellow members of the bar about the affair and, whether
expressly or impliedly, used the considerable power of her office to fuel the liaison. While
Judge Wilfong told fellow members of the judiciary and the bar that she was both aware of
and concerned about the ethical implications of her conduct, she failed to disclose the
relationship to litigants appearing before her. And, to those in whom she had confided, she
repeatedly misrepresented that the relationship had ended.
Judge Wilfong used her position to leverage an assistant prosecutor and a
fellow attorney to secure the use of their residences to further the affair. These same
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attorneys understandably expressed concern about appearing in front of her after being
compelled to file complaints and testify against her in the instant proceedings.
A judicial office represents a public trust, and the conduct of a
judicial officer may bear upon the independence and integrity of
the judiciary regardless of whether the conduct implicates the
decision-making process. One aspiring to, or holding, the office
cannot reasonably expect to be a rogue in his or her private life
without thereby staining the integrity of the position.
In re Carney, 79 A.3d 490, 506 (Pa. 2013).
In fact, one of Judge Wilfong’s closest friends, Christopher Cooper, the
chairman of her family court election committee, was forced to file a complaint against her
in compliance with his reporting obligations and in fulfillment of his duty to his clients who
were affected by Judge Wilfong’s actions.1 Mr. Cooper testified before the Judicial Hearing
Board that “a lot of people are hurt by this” and it “has had a negative impact on the legal
community[.]” Explaining further, Mr. Cooper noted that the “relentless” press coverage
about Judge Wilfong’s conduct has caused “a lot of trust” to be lost in the community at large
since “the community looks to us to be above board, and if we aren’t and if we appear to be
then we suffer and the public doesn’t want to trust us to hear cases.” With regard to his own
1
In addition to her October 14, 2013, self-reporting, Judge Wilfong’s conduct was
reported to the Judicial Investigation Commission by her law clerk, Mary Catherine
Wendekier; Randolph County Prosecuting Attorney Michael Parker; attorney Christopher
Cooper; and Community Corrections board members R. Mike Mullens, Heather Weese,
Raymond LaMora, and David Wilmoth.
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clientele, Mr. Cooper explained that he perceived that Judge Wilfong’s required disclosure
of the fact that he filed a judicial complaint against her at the outset of each hearing and in
front of his clients has caused them to lack confidence in him and view him as “the judicial
rat.”
Rather than demonstrating her sincere remorse for placing her friends,
colleagues, and fellow members of the bar in this compromising position, Judge Wilfong
begs for a mere reprimand and offensively suggests that the litany of complaints from the
Randolph County bar were manufactured simply out of fear for the lawyers’ own reporting
obligations, rather than reflecting a genuine belief that the integrity of the judiciary had truly
been jeopardized. “Integrity in all actions done in a judicial decision-making capacity is of
course vital. But integrity and high standards of conduct also relate to the much broader
issue of faithfully adhering to the public trust which resides with every judge and justice in
all other public conduct.” Matter of Neely, 178 W. Va. 722, 729, 364 S.E.2d 250, 257 (1987)
(Workman, J., concurring and dissenting).
It is clear that Judge Wilfong cavalierly betrayed the trust of the voters and
citizens of Randolph County. Equally clear is the fact that her conduct will cost the entirety
of the state’s taxpayers considerable expense to address this betrayal of the public’s trust.
The undisputed testimony in this case demonstrates that the investigation into Judge
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Wilfong’s actions cost Randolph County approximately $50,000.00.2 Because of her actions
and resultant suspension, this Court has been forced to assign and pay temporary judges to
cover the remainder of Judge Wilfong’s term at considerable expense to the taxpayers.3 The
Judicial Hearing Board recommended a fine of $20,000.00–less than half of the total
permissible fine of $55,000.00. Nevertheless, the majority summarily rejects the
considerably-discounted fine recommended by the Judicial Hearing Board, thereby adding
insult to injury. Sadly, the citizens of this state have recently seen first-hand the effect of
malfeasance and/or corruption in the judiciary and the exponentially devastating effect such
behavior has in rural counties with only one sitting circuit judge. Through this case, the
majority has allowed inappropriate judicial conduct to have not only deleterious effects on
the public’s perception of the judiciary, but also a grievous effect on the state’s coffers as
well.
While seemingly acknowledging the severity of Judge Wilfong’s behavior by
imposing a suspension until the end of her term, the majority utterly disrespects the
2
Separate from the significant amount of money spent on the investigation,
innumerable employee hours and county and state resources were devoted to investigating
this matter.
3
In addition to the temporary judges that will now be appointed to cover Judge
Wilfong’s caseload until the end of her term due to her suspension, this Court previously
assigned three senior status judges beginning in May of 2014, to cover a significant amount
of Judge Wilfong’s caseload due to myriad motions seeking her disqualification. It is
common for these temporary judges to require hotel accommodations. They also receive
mileage and meal expenses as well as a per diem in the amount of $435.00 per day.
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considerable wisdom and experience of the Judicial Hearing Board through its wholesale
rejection of the recommended $20,000.00 fine. The Judicial Hearing Board is comprised of
nine members, consisting of three circuit judges, one senior status circuit judge, one
magistrate, one family court judge, and three members of the public. These nine
people–imbued with the grave responsibility and authority of keeping a watchful eye on our
highest officials–absorbed and observed first-hand the distasteful details of Judge Wilfong’s
misconduct and, critically, the effect that conduct had upon the citizens and bar of Randolph
County. Wholly dismissive of the weighty consideration of the evidence presented to the
Judicial Hearing Board, the majority flatly rejects the $20,000.00 fine. While the majority
justifies its actions as merciful, it should not be overlooked that substantial mercy was
already afforded by the Judicial Hearing Board, which could have imposed an eleven-year
suspension and a $55,000.00 fine for Judge Wilfong’s eleven violations of the Code of
Judicial Conduct.4 In what can only be viewed as a fit of selective amnesia, the majority
forgets that this Court did not hesitate to accept the Judicial Hearing Board’s recommended
sanction of a $20,000.00 fine against Magistrate William Tom Toler for his four separate
violations of the Code of Judicial Conduct. See In re Toler, 218, W.Va. 653, 625 S.E.2d 731
4
The sole legal justification provided by the majority for the complete removal of the
fine imposed by the Judicial Hearing Board was its citation to two dissenting opinions
included in a footnote.
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(2005). Unlike the case sub judice, the fine in Toler was the maximum fine that could have
been imposed. Apparently the majority’s mercy is as selective as its memory.5
Equally persuasive is the manner in which other courts have handled similar
behavior. These cases evidence a uniform recognition that misconduct of a sexual nature that
encroaches upon judicial duties is treated as a serious offense–one that deserves the
combined sanctions of office-stripping and fine imposition when the egregiousness of the
conduct so merits as it clearly does in this case.6
5
Although the majority’s rejection of the fine in this matter is difficult to accept from
a sanctions perspective, it is even more troubling when considering the ever-mounting
expense that Judge Wilfong’s behavior will cost the taxpayers of this state. See supra note
3.
6
Matter of Edwards, 694 N.E.2d 701 (Ind. 1998) (removing judge from office,
disbarred, permanently enjoining judge from ever seeking judicial office again, and fined
$100,000 for sexual relationship with litigant); In re McCree, 845 N.W.2d 458 (Mich. 2014)
(imposing six-year suspension without pay for affair with litigant); see also In re Abrams,
257 P.3d 167 (Ariz. 2011) (upholding two-year suspension of judge’s law license after
resignation due to affair with defense attorney and permanently enjoining him from again
serving as a judicial officer in Arizona); In re Miller, 949 So. 2d 379, 394 (La. 2007)
(removing judge from office due to adulterous relationship with secretary which “brought
the judicial office into disrepute”); Matter of Gelfand, 512 N.E.2d 533 (N.Y. 1987)
(removing judge from office due to extramarital affair with legal assistant); In re Kivett, 309
S.E.2d 442 (N.C. 1983) (removing judge from office due to improper relationship with bail
bondsman and disqualifying from future judicial office); In re Chrzanowski, 636 N.W.2d
758, 771 (Mich. 2001) (affirming one-year suspension of judge without pay for appointment
of attorney with whom she was having affair because “actions undermined public confidence
in the integrity and impartiality of the judiciary”).
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The citizens of West Virginia, and particularly Randolph County, deserve
better than the watered-down disposition settled upon by the majority.7 “In disciplining a
judicial officer for his misconduct, [such discipline] not only punishes the wrongdoer, but
also repairs the damaged public trust and provides guidance to other members of the judiciary
regarding their conduct.” In re Melograne, 812 A.2d 1164, 1168 (Pa. 2002). The majority
has not only failed the public, but through its unwillingness to mete out an appropriately stiff
sanction it has also dishonored the faithful and reputable service administered each day by
the remaining members of the West Virginia judiciary. Accordingly, while I concur in the
suspension of Judge Wilfong through the end of her term in office, I respectfully dissent from
the majority’s refusal to impose the fine recommended by the Judicial Hearing Board.
7
This Court’s discussion in Young v. Saldanha, 189 W.Va. 330, 431 S.E.2d 669
(1993), regarding the vital need for self-policing within the medical community is analogous
to the equally-important need for the judiciary to be subject to the same type of rigorous,
internal review. See id. at 334-335, 431 S.E.2d at 673-674. The willingness of the majority
to reject the significant fine agreed upon by the Judicial Hearing Board vitiates the efforts
of the very system we have adopted to “police” the robe-wearers of our judicial system.
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