CHARLESTON – A special counsel has recommended that Randolph Circuit Judge Jaymie Wilfong be suspended for four years without pay.
In a brief filed Tuesday, Rachael Fletcher Cipoletti of the state’s Judicial Investigation Commission’s Office of Disciplinary Counsel asks the West Virginia Supreme Court of Appeals to suspend Wilfong for four years without pay, censure her for 25 violations of the Code of Judicial Conduct and require her to pay the costs of investigating and prosecuting her for sexual misconduct.
Wilfong is accused of violating four canons of the Code of Judicial Conduct — upholding the integrity and independence of the judiciary, avoiding impropriety and the appearance of impropriety, performing duties of the judicial office impartially and diligently and conducting extra-judicial activities as to minimize the risk of conflict with judicial obligations.
Last year, Wilfong self-reported her two-year extramarital affair with Travis Carter, the former executive director of the North Central Community Corrections Board.
Wilfong, however, contends the affair “involves a personal, moral failing on her part and that she should not be disciplined for (her) conduct,” the ODC brief stated, noting that other courts have found the private aspects of a judge's conduct are secondary to the public problems it creates.
Last year, Wilfong self-reported having an affair with the former director of North Central Community Corrections and refused to recuse herself from cases involving him or his staff.
In a response, Wilfong’s lawyers argue that her conduct doesn’t justify what they call the “death penalty.”
The case is before the Judicial Hearing Board, which will make a recommendation to the West Virginia Supreme Court.
This spring, the Judicial Investigation Commission had said Wilfong broke the Code of Judicial Conduct by violating several canons of the code such as integrity of the judiciary and impression of improper influence after she admitted to having an affair with a community corrections official.
In October, Wilfong self-reported her affair with former North Central Community Corrections director Travis Carter to the JIC. The commission issued its formal statement of charges on April 23, noting that Wilfong carried on the affair in her judicial chambers between court proceedings and failed to disclose the relationship to the corrections program’s board, although she is a non-voting member.
In its formal charges, the JIC says Wilfong and Carter started their “surreptitious sexual relationship” in October 2011 and that there is evidence Wilfong and Carter performed sexual acts in her judicial chambers between court proceedings.
“Wilfong sent sexually explicit e-mails, texts, instant messages and nude photos of herself to Carter on his county issued phone and computer,” the charges state. “During the course of the relationship with Carter, at times when Carter and Judge Wilfong were in her judicial chambers, it became necessary for court personnel to interrupt Judge Wilfong and Carter in order to insist that Judge Wilfong continue with the daily court proceedings.”
The North Central Community Corrections program gives Wilfong the option of a community-based alternative sentencing program for offenders who require less than institutional custody.
“Judge Wilfong sets the participation fee amount and may require the payment of a participation fee to participate in community corrections programs, like North Central Community Corrections,” the JIC charges state.
The JIC also says Wilfong enlisted the aid of Assistant Prosecuting Attorney Lori A. Gray to “further her relationship and her sexual contact with Carter by repeatedly requesting the use of and utilizing Gray’s personal residence to meet with Carter.”
Gray continued to appear before Wilfong, representing the state in criminal matters where Carter and his staff offered opinions and/or testimony. She often used North Central Community Corrections as a form of alternative sentencing, according to the JIC charges.
The JIC says Wilfong enlisted the aid of attorney Phillip S. Isner’s garage for her meetings with Carter. Isner practiced in Wilfong’s courtroom.
The JIC says state Supreme Court Administrator Steve Canterbury contacted Wilfong in September 2012 to raise concerns about her relationship with Carter. She said the relationship ended then, but the JIC says evidence shows the relationship resumed in November 2012 and continued until Wilfong reported it in October 2013.
Wilfong answered the JIC charges and issued a press release. While she admits to the “morally wrong” affair, but says it didn’t affect her work as a judge.
Her self-report also included reports from her law clerk, the county prosecuting attorney and several local attorneys who practiced before Wilfong.
The JIC handed the 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 her press release, 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.”
The Randolph County Commission first suspended Carter in October and hired a Pittsburgh law firm to investigate the matter. Carter resigned his position Dec. 5.
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 Elkins attorney David A. Sims and Charleston attorney Harry Deitzler of the law firm of Hill, Carper, Peterson, Bee & Deitzler.