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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