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W.Va. high court hears Elkins judge’s case

CHARLESTON, W.Va. — Randolph County Circuit Judge Jaymie Godwin Wilfong sat next to her husband Tuesday as her legal counsel pleaded for mercy on her behalf before the West Virginia Supreme Court of Appeals.

Wilfong, who hasn’t presided over a case involving the Randolph County Prosecuting Attorney’s Office since May, admitted to a two-year extramarital affair with former North Central Community Corrections director Travis Carter while both were serving in their official capacities. The pair had sexual encounters at the Courthouse and planned to leave their respective spouses to be together, according to testimony.

Carter later resigned his post.

After a lengthy inquiry by the Judicial Investigation Commission, Wilfong was charged with 11 violations of Judicial Canon by a Judicial Hearing Board, who recommended to the Supreme Court a three-year suspension, a $20,000 fine and that Wilfong pay for the cost of court proceedings.

After hearing from both sides Tuesday, the five Justices will deliberate and issue an opinion at a later date.

During the hearing, the Justices subjected both sides to stringent questioning. Justice Menis Ketchum said the brief filed by Wilfong’s counsel opposing the Hearing Board recommendation did not seem to clearly outline why the penalty should be reduced.

The affair was wrong, but it did not impact Wilfong’s ability to discharge her duties as judge, said Harry Deitzler, one of Wilfong’s attorneys.

“The question that has to be decided by the five of you is, ‘What did she do and what should you do about it? The fact is she did one thing. She had an affair and it extended over a period of time. That has now been extrapolated into 11 separate violations so they can stack up the penalties,” Deitzler said.

The suspension recommended by the Hearing Board extends beyond the 2016 expiration of Wilfong’s term, which would make her ineligible to run for office, Deitzler argued. Additionally, the loss of employment, along with the fine and costs, will be financially devastating to Wilfong’s family, he said.

However, Rachael Cipoletti, arguing for the Office of Disciplinary Counsel, said the affair had sweeping impacts on the judicial community in Randolph County and asked the High Court to uphold the Hearing Board’s decision.

By privately disclosing the relationship to certain members of the judicial community and asking them to keep it a secret, Wilfong knowingly “made it difficult to uphold their obligations to the State Bar.”

Wilfong was a nonvoting member of the North Central Community Corrections Board and, on multiple occasions, openly advocated for Carter and his employees, Cipoletti said. By participating in the administration of the program without disclosing the relationship, she undermined the scope of the board and the public confidence in the judiciary, effectively creating an appearance that her social relationship with Carter improperly influenced her judgment and conduct.

“Judge Wilfong is held to a higher standard of personal and professional conduct. As you can see in this very courtroom, the bench is a majestic piece of our society. And we are holding you to a higher standing,” she said. “As such, her illicit sexual relationship with Carter was inconsistent with the high standards of conduct we expect.”

Ketchum questioned whether the Hearing Board’s recommendation was overreaching, considering the suspension extended beyond Wilfong’s term of office.

“What does it hurt to go ahead and let her serve as judge and admonish or reprimand her?” Ketchum said.

That would not show that judges are not held accountable to a higher standard, Cipoletti said.

“That is our job. That is your job as the judiciary to hold lawyers and judges accountable,” she said.

Justice Brent Benjamin shared similar concerns. A three-year suspension would prevent Wilfong from holding office if she decided to run for re-election.

“Do you believe there is the power to suspend someone beyond their term of office and take away from the people the ability to choose a certain person as their judge in the next election?” Benjamin said.

It is within the court’s power to have the suspension end at the conclusion of Wilfong’s current term, Cipoletti said. But under the law, the board could have asked for one year of suspension for each of the 11 violations.

Ketchum also questioned the purpose of the fine.

“Is it when somebody’s down, you just go ahead and kick them? Hurt them? What’s the purpose of the $20,000?” he said.

Cipoletti pointed out the Hearing Board also could have recommended a $5,000 fine for each of the 11 violations. By recommending far less than the maximum, the Hearing Board considered the good Wilfong has done in the community when deliberating her case and reaching the recommendation.

Justice Margaret Workman said the High Court will have numerous issues to consider before rendering its opinion. As an example, she pointed to incidents in which Wilfong and Carter asked members of the judicial community to allow them to use their residences for encounters.

“That’s a pretty big favor to ask a prosecutor or lawyer. How can we know she wouldn’t later be sympathetic to them in court? I’m not saying she did or she was, but how can we know? There’s an appearance,” Workman said.

Deitzler said Wilfong deserves to be sanctioned, but it should be relative to the offense.

In asking for leniency, Deitzler pointed to the husband sitting next to Wilfong. When Wilfong disclosed the affair to her husband, she thought he was going to leave her. Instead, he forgave her. Since then, they’ve worked through it and remain together, Deitzler said.

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