CHARLESTON - The Judicial Hearing Board made stringent recommendations Friday to the West Virginia Supreme Court of Appeals in a case involving a Randolph County Circuit Court judge.
The board voted 8-0 - with 19th Judicial Circuit Judge Alan D. Moats disqualifying himself - to censure, suspend and fine Judge Jaymie Godwin Wilfong for violating several Canons of the Code of Judicial Conduct in connection to her admitted two-year extramarital relationship with the then-executive director of the North Central Community Corrections program, Travis Carter.
Judge Moats recused himself from the decision because Judge Wilfong told him of the affair in October 2013, just prior to her self-report to the Judicial Investigation Commission.
"We wish that what the hearing panel did is they considered the evidence, they listened intently and they reached a recommendation that they thought was justified," said David A. Sims, Judge Wilfong's attorney. "Now it will be up to the Supreme Court to determine if what they did was, in fact, correct and in accordance to the rule of law; and will make the final decision as to Judge Wilfong's fate. It was obvious from the hearing panel's decision that not all of the things that Judge Wilfong was charged with were true."
The recommendation stated, "In summary, the Board recommends that Respondent be censured; suspended for a total period of three years without pay; fined a total of $20,000; and ordered to pay the costs of the proceeding for eleven (11) violations of the Code of Judicial Conduct arising from the allegations in Count I and Count II of the Statement of Charges which have been admitted by Respondent and/or determined by the Board to have been established by clear and convincing evidence."
The Judicial Hearing Board broke down its order as follows:
In the original Statement of Charges, filed on April 23, the Judicial Investigation Commission charged Wilfong with violating multiple Canons, including integrity and independence of the judiciary; impropriety and the appearance of impropriety; impartial performance of duties; and conduct of extra-judicial activities to minimize the risk of conflict with judicial obligations.
The charges stemmed from Judge Wilfong's relationship with Carter and included her performing oral sex on Carter in chambers and her sending sexually explicit text messages and nude photographs to the then-NCCC director on his county-funded cell phone.
According to the Board's recommendation, "... Respondent was charged with twelve (12) separate violations: eight Canons of the Code of Judicial Conduct pursuant to Count I and four Canons of the Code of Judicial Conduct pursuant to Count II. The Board concludes, based both upon Respondent's admission and other clear and convincing evidence, that Respondent violated eleven (11) separate Canons of the Code of Judicial Conduct."
The maximum penalty, according to the Board's ruling, would have been a censure for each of the 11 violations, suspension without pay for up to one year for each of the 11 counts and a fine of $5,000 for each of the 11 counts for a total of $55,000.
Earlier this week, the Office of Disciplinary Counsel recommended a four-year suspension and censure.
Aside from the suggested $20,000 fine, Judge Wilfong will have to make restitution on the fees involved with conducting the proceedings. No total is yet available on this portion of the penalty as proceedings will be ongoing until the High Court makes its final ruling.
As for the censures, according to Rule 4.2 of the Rules of Judicial Disciplinary Procedures, "A censure constitutes formal condemnation of a judge who has engaged in conduct which violated the Code of Judicial Conduct. The extent to which the judge knew or should have reasonably known that the conduct violated the Code of Judicial Conduct may be considered in determining the appropriate sanction."
Both sides have 30 days to file written consent or objection with the clerk of the Supreme Court of Appeals to the disposition of the formal charge recommended by the Judicial Hearing Board.
According to Rule 4.10 of the Rules of Judicial Disciplinary Procedures, "If the parties consent to the recommended disposition, the matter shall be filed with the Supreme Court of Appeals for entry of an order consistent with the recommended disposition. If the Court does not concur with the recommended disposition, the Clerk of the Supreme Court of Appeals shall promptly notify the parties, establish a briefing schedule, and notify the parties of the date and time of oral argument or submission of the case without oral argument before the Supreme Court of Appeals. Following oral argument or submission of the case without oral argument, the Court will file an opinion or order disposing of the case. Unless otherwise provided in the Court's opinion or order, any sanction will not take effect until after expiration of the rehearing period or the denial of any petition for rehearing."
"That is basically under the rules," Simms said. "There are provisions in the rules to file a brief with the Supreme Court advocating our position as well as the Special Disciplinary Counsel, and the Supreme Court may or may not hear arguments on the Judge's fate. If they decide it on the briefs, then that is their prerogative as well."
The Board had harsh words for Judge Wilfong in its recommendation, noting, "... A judge is held to a higher standard of personal and professional conduct and illicit sexual relationships involving judges are inconsistent with the 'high standard of conduct' required of judges, particularly where those relationships involve persons who appear before a judge; sexual relations are conducted on courthouse property and/or during court hours. ..."
The Hearing Board also noted several points as Aggravating Circumstances:
- "Respondent was well-aware of the ethical implications of her relationship with Mr. Carter for two years before she self-reported."
- "Respondent repeatedly represented to court officials and attorneys, genuinely concerned about her and the ethical implications of her continued relationship with Mr. Carter, that she had ended or was ending the relationship, then either continued or resumed the relationship thereafter without advising those court officials and attorneys that she had done so."
- "Respondent compromised others with whom she worked and/or over whom she had power as the only Circuit Court Judge in Randolph County, including members of the local bar, by privately disclosing the existence of the relationship while implicitly and/or expressly requesting that they keep her secret, which patently involved obvious and multiple conflicts of interest."
- "Respondent used her power as a Circuit Judge to further her improper relationship with Mr. Carter to advance the interests of Mr. Carter and the Program."
- "Respondent demonstrated, over a two-year period, a fundamental lack of candor, judgment, integrity, and fairness."
- "Respondent only self-reported after being contacted by Counsel for the Judicial Investigation Commission about its investigation of her relationship with Mr. Carter, which precipitated the termination of Mr. Carter's employment; the expenditure of about $50,000 by the County Commission; the imposition of administrative and financial burdens on the West Virginia Judiciary as a result of her disqualification from all cases handled or otherwise prosecuted by the Randolph County Prosecutor, including the recall of two Senior Status Judges, from May 1, 2014, to present and to continue indefinitely; and the potentially irreversible damage to her relationships with the local bar, county officials, and members of the public."
- "Although in her Response, she admitted factual allegations essentially constituting multiple violations of the Code of Judicial Conduct, Respondent persisted in her denial of any violations until only a few days before the hearing."
If the Supreme Court approves the Judicial Hearing Board's recommendation, the three-year suspension would remove Judge Wilfong from the bench for the remainder of her term, which expires in 2016.
"What people need to understand is that the hearing panel recommendation is just that, a recommendation," Simms said. "It is not a final decision on the judge's fate. It is just their determination on what the judge's fate should be, but the Supreme Court may feel differently about it."