Interim Suspension Of Magistrate To Continue

The West Virginia Supreme Court of Appeals declined to alter an order suspending a magistrate without pay. 

In 2018, this Court suspended Magistrate Wilfong without pay in Case No. 18-0891 following allegations that Magistrate Wilfong missed an excessive amount of work and had been intoxicated both at a 2015 magistrates’ conference and while on the bench. The Judicial Hearing Board (“Board”) found that: Magistrate Wilfong admitted she has suffered from addiction to drugs legally prescribed to her over a period of approximately fifteen years and this prescription drug addiction had negatively impacted the performance of her judicial duties; she had averred that she successfully discontinued the use of the prescribed drugs to which she had become addicted with the assistance of medical professionals; and she agreed the Lawyer Assistance Program (“WVJLAP”) was necessary to help her maintain compliance with a program developed to prevent a recurrence of her prescription drug addiction that may negatively impact the performance of her judicial duties…

In June 2018, WVJLAP suspended Magistrate Wilfong’s monitoring agreement due to noncompliance following drug tests showing significant increases in hydrocodone and benzodiazepines. She submitted to a residential evaluation at the Farley Center in July 2018 where it was determined that Magistrate Wilfong had a mild alcohol use disorder, moderate opioid use disorder and severe sedative/hypnotic/anxiolytic use disorder. Magistrate Wilfong was reinstated to the WVJLAP program in November 2018.

In January 2019 the court reprimanded and reinstated the judge subject to treatment compliance.

But

On February 13, 2019, JDC filed a complaint against Magistrate Wilfong and alleged she was again engaged in serious violations of the Code and/or had become unable to perform her official duties. First, JDC alleged that since her reinstatement, Magistrate Wilfong was routinely coming into work late by thirty minutes to an hour. And second, JDC submitted evidence that Magistrate Wilfong was not complying with the terms of her WVJLAP monitoring agreement because urine and blood tests revealed that she consumed such a large amount of alcohol between January 10 and 14, 2019, that the JDC characterized it as “binge drinking.”

In her response, Magistrate Wilfong denies the allegation of alcohol consumption. She argues the blood and urine tests showing she had metabolites in her system consistent with excessive alcohol consumption are scientifically unreliable. Magistrate Wilfong notes the consumption of normal food products, such as sauerkraut, balsamic vinegar, and certain alcohol based products such as Nyquil, can trigger positive results.

The court found probable cause that the magistrate violated the order.

WVJLAP was initiated to provide immediate and continuing assistance to lawyers, judges, and law students who suffer from the diseases of alcoholism and drug addiction, as well as mental health disorders. Compliance with the monitoring agreements established under this program is a critical component to the successful completion of the program and the recovery. This Court has recognized that addiction is a disease that must be treated through health interventions and that relapse is understood to be a somewhat common feature of alcoholism and drug addiction. This Court believes in the potential for recovery and with such recovery can come the restoration of professional rights and privileges. Thus, Magistrate Wilfong may benefit from continued drug and alcohol addiction treatment including in-patient rehabilitation if the evidence yet to be developed shows she has relapsed.

In light of the foregoing, we decline to alter our order of February 26, 2019. Should Magistrate Wilfong be exonerated by the pending disciplinary investigation, she may return to this Court to seek backpay. In re Grubb, 187 W. Va. at 234, 417 S.E.2d at 925.

(Mike Frisch)