CHARLESTON – The state Supreme Court must decide if recommended penalties for a circuit judge who admitted to an affair are just.

On Tuesday, the Justices heard oral arguments in the case of Randolph Circuit Judge Jaymie Wilfong, who had a two-year affair with Travis Carter, who was the director of the North Central Community Corrections program in Elkins.

This summer, the Judicial Hearing Board recommended Wilfong should be censured, suspended for three years without pay, fined $20,000 and pay court costs. She appealed in September, saying a public reprimand was a more appropriate discipline. She has been on suspension since May.

In Tuesday’s arguments, Special Judiciary Disciplinary Counsel Rachael L. Fletcher Cipoletti said the board’s recommendation was justified.

“Judge Wilfong is held to a higher standard,” Cipoletti said. “As such, her elicit sexual relationship … was not up to that higher standard.”

Cipoletti noted that the board said Wilfong’s conduct “undermines the public confidence in the judiciary” and “casts a reasonable doubt on her impartiality.”

Justice Menis Ketchum asked Cipoletti why Wilfong should be penalized as recommended.

“As a practical, matter, there is no way to promise the people of Randolph County and other people in this state that we are holding judges to a higher standard,” she replied, adding that if lesser penalties were enforced, “I don’t think it sends the proper message that this court has held a higher standard and we are holding judges accountable.”

Ketchum noted that the affair is over and that “we even give criminals probation.”

“We’re comparing apples and refrigerators,” Cipoletti replied.

“That’s a death sentence, isn’t it?” Ketchum asked of the current recommendation. “She can’t be elected again.”

Wilfong is up for re-election in 2016. If the three-year suspension were handed down, it would run over into the next judicial term. Whether Wilfong could be on the ballot isn’t clear.

Still, Cipoletti said she didn’t think the penalties were a death sentence.

On behalf of Wilfong, Charleston attorney Harry Deitzler said he was helping represent the judge because he believes in her cause.

“The question that has to be decided by the five of you is what did she do and what should you do about it?” said Deitzler, a partner with Hill, Carper, Peterson, Bee & Deitzler.

“Her actions didn’t affect the administration of justice,” he told the Justices. “And the penalties they’re proposing are totally inconsistent.

“No one ever said Jaymie Wilfong was a bad judge or couldn’t hear their cases. … She realizes and fully understands the impact this has had. In my opinion, she was seduced and taken advantage of. I don’t think she knew that the perception of the public would be impacted.”

Deitzler said there is “no question” Wilfong should be sanctioned.

“What I’m here to argue about is the fairness of the sanction,” he said. “It should be equal to every other person. This amount is catastrophically devastating to her.

“But she also couldn’t run for office again, and that isn’t fair to her or the citizens of Randolph County.”

Deitzler said he doesn’t think the public confidence in the judiciary has been eroded by Wilfong’s actions.

When asked what penalty he would hand down, Deitzler suggested a 60-day suspension, even citing a similar case noted in Cipoletti’s brief.

“I really want to emphasize what Justice Ketchum raised in that this is a death sentence,” Deitzler said of the current recommendations. “She can’t survive, and she’ll never be a judge. And she has an excellent record as a judge except for this indiscretion.”

The Judicial Investigations Commission handed the Wilfong matter over to the West Virginia Office of Disciplinary Counsel, Lawyer Disciplinary Board because Wilfong is a sitting member of the Judicial Hearing Board.

In a press release earlier this year, Wilfong apologized for her actions.

“I have let down my husband, my staff, and everyone who previously looked up to me as a judicial officer,” she wrote. “The local attorneys who filed reports are my friends and colleagues. Their comments caused me to re-evaluate myself, my marriage, and the way that people whom I work with perceive me.

“What I did was morally wrong and it created discomfort among those who surround me. I wish to apologize to each of those individuals and humbly ask for their forgiveness. I thank them for their courage in publicly sharing their insight. Their guidance and direction has saved my life and my marriage.

“I apologize to the people of Randolph County and to the other judges and justices in West Virginia upon whom my immoral affair was a bad reflection. Please be assured that my improper extrajudicial conduct did not ever adversely affect any decision, any litigant, or any hearing over which I presided.

“On a personal note, I publicly thank and again apologize to my husband whom I love more than I can express in words. When other people would have turned and walked away, Matt stood strong, by my side, and taught me the meaning of true love. He is a blessing which I will never take for granted again.”

Wilfong has been a judge since 2009, and her term is set to expire in 2016. Before that, she had been a family court judge since 2003.

Wilfong is being represented by Deitzler and Elkins attorney David A. Sims.

West Virginia Supreme Court of Appeals case number 14-0379

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