In re Mark A. Wilson Magisterial Dist. Judge 27TH Judicial Dist. Wash. Cnty.

• Decision Date: 09 June 2017
• Docket Number: 1 JD 2017
• Parties: In re: Mark A. Wilson Magisterial District Judge 27th Judicial District Washington County
• Court: Pennsylvania Court of Judicial Discipline

In re: Mark A. Wilson Magisterial District Judge 27^th Judicial District Washington County

1 JD 2017

COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE

June 9, 2017

REPLY OF THE JUDICIAL CONDUCT BOARD TO OMNIBUS MOTION

AND NOW, this 9^th day of June, 2017, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board), by undersigned counsel, and files this Reply to Omnibus Pretrial Motion filed on behalf of Respondent, the Honorable Mark A. Wilson, as follows:

1. Admitted.

2. Admitted.

3. Admitted.

4. Admitted.

5. Admitted.

6. Admitted. By way of further answer, it is admitted that ADA Carroll's beliefs about the criminal versus civil merit of the Amon's complaint existed despite Respondent repeatedly requesting him to come to his office to review the private criminal complaint, and despite Respondent commenting to him that Mayor Kepics had made only $400 in payments to the Amons, that Mayor Kepics was avoiding their attempts to contact him, and that the Amons were good people and that he wanted to help them out.

7. The Board is without knowledge or information to respond to this averment. It is, therefore, denied and strict proof thereof is demanded. By way of further answer, Respondent's averments concerning Mayor Kepics' conduct in contacting Chief Tempest is irrelevant to this Court's consideration of the allegations contained within the Board Complaint.

8. Admitted.

9. Admitted.

10. Admitted.

11. The Board is without sufficient knowledge or information and belief to respond to this averment. It is, therefore, denied and strict proof thereof is demanded.

Motion to Dismiss

Doctrine of Laches

12. The responses set forth above are incorporated herein by reference as though set forth in full.

13. Denied as Stated. It is admitted that Mayor Kepics filed a Confidential Request for Investigation on June 5, 2013. It is further admitted that Mayor Kepics obtained an Order expunging his records on February 7, 2013. The Board is without sufficient knowledge or information and belief concerning when Respondent acted on the expungement order and destroyed the files concerning Mayor Kepics' case. It is, therefore, denied and strict proof is demanded that "nearly four months after [Mayor Kepics] had Judge Wilson's file of his case destroyed, Kepics filed a Confidential Request for Investigation with the Board." (italics in original).

14. Denied as stated. Mayor Kepics' Confidential Request for Investigation is a written document that speaks for itself. See Exhibit A. Any attempt to characterize its contents is denied. Regarding the averment concerning the destruction of Judge Wilson's file in the matter involving Mayor Kepics, see ¶¶ 11 and 13, above, which are incorporated herein by reference as though set forth in full.

15. Denied as argument and improper conclusions of law requiring no response. To the extent that this paragraph is construed to set forth factual allegations, they are denied and strict proof thereof is demanded. To the extent any response is required, the Board denies that all substantiating records were lost or destroyed. Documentation substantiating the criminal process against Mayor Kepics does exist, and includes, in part, Amon's Private Criminal Complaint and complaint worksheet, Mayor Kepics' booking sheet, and ADA Carroll's memorandum to District Attorney Gene Vittone, all of which the Board has provided to Respondent as required by the Court's discovery rules.

16. Denied as argument and improper conclusions of law requiring no response. To the extent that this paragraph is construed to set forth factual allegations, they are denied and strict proof thereof is demanded. By way of further answer, laches is an equitable affirmative defense. In order for laches to apply, a respondent must prove the following elements: (1) a lack of due diligence by the complaining party who delayed the filing of the action; and (2) the respondent was prejudiced by the delay. In re Lokuta, 964 A.2d 988, 1130 (Pa.Ct.Jud.Disc.2008)(citing Weinberg v. State Board of Examiners, 501 A.2d 239 (Pa. 1985)). In cases where, as here, the Commonwealth is the complaining party, the party asserting laches must make a "stronger showing" that laches applies to bar the Commonwealth from prosecuting its claim. Lokuta, supra, at 1131, n. 59 (citations omitted). While Respondent cites Lokuta for the proposition that Mayor Kepics' four-month delay in submitting his Confidential Request for Investigation establishes a lack of due diligence on the part of Mayor Kepics as a victim, a thorough review of Lokuta shows otherwise.

The Respondent in Lokuta asserted the affirmative defense of laches to overcome evidence of conduct that occurred more than a decade prior to its use at trial. Id., 964 A.2d at 1129-32.In addressingthe claim of laches, the Court of Judicial Discipline cited to Lyness v. Com. State Bd. Of Med., 561 A.2d 362 (Pa.Commw.Ct.1989), which involved a physician appealing a decision of the state Board of Medicine to revoke his license to practice medicine. In Lyness, the Board determined that the defendant committed immoral and unprofessional conduct, which had been the subject of an underlying criminal prosecution. The defendant raised the doctrine of laches based on the victims not reporting his conduct to the Board until years later. The Commonwealth Court recognized that the requirement of proving undue delay as part of laches "may be fulfilled by proving that a victim unjustifiably delayed in reporting an incident to the Board." Id.,at 370.

In rejecting Judge Lokuta's claim of laches, this Court refused to equate the Lokuta witnesses to the Lyness "victims. "The Court found the Lynessvictims, who were victims of rapes and assaults, were victims in the elementary sense of the word where "[it] has long been recognized that the victim of a crime naturally would be expected to complain of the offense at the first safe opportunity." Lokuta, supra, at 1131-1132. In the Lyness context, the lack of a prompt complaint raised questions about whether the crimes in fact took place. Id., at 1131. In contrast, the Court found that the Lokuta witnesses testifying about non-criminal incidents were not "victims" as the Commonwealth Court found in Lyness. The events to which they testified were not occasions where it would have been natural, or even expected, that the witnesses would have immediately filed a complaint with the Judicial Conduct Board. Id., at 1132.

Mayor Kepics' experience with Respondent is more similar to the witnesses in Lokuta than with the victims in Lyness. One would not necessarily expect an individual to file a Confidential Request for Investigation with the Board at the first safe opportunity. The existence of the Judicial Conduct Board as an investigatory agency for judicial misconduct is not as well-known as that of the police. It would be natural for an individual victimized by a crime to report the incident to police within days or months because it is common knowledge that the police exist to enforce the criminal laws. In contrast, an individual is likely to be unaware of the Judicial Conduct Board's existence to investigate and prosecute judicial misconduct unless and until the individual has the unfortunate occasion to experience judicial misconduct. It would be unremarkable that four months would pass before an individual discovers the existence of theJudicial Conduct Board and decides to submit a Confidential Request for Investigation. As such, Mayor Kepics cannot reasonably be found to have unjustifiably delayed his filing with the Judicial Conduct Board in order to support Respondent's affirmative defense of laches.

17. Denied as an improper conclusion of fact and law and legal argument to which no response is required. To the extent that this paragraph is construed to set forth factual allegations, they are denied and strict proof thereof is demanded. As referenced in ¶ 16, any alleged delay occasioned by Mayor Kepics filing of his Confidential Request for Investigation with the Board on June 5, 2013, is not evidence supporting the application of the doctrine of laches, as the holding of Lyness does not apply to him.

By way of further answer, under its rules of procedure, the Board may consider complaints arising from acts or omissions occurring within four years of the date of the complaint (Confidential Request for Investigation). J.C.B.R.P. No. 15; In re Zupsic, 893 A.2d 875, 885 (Pa. Ct. Jud. Disc. 2005) (explaining that J.C.B.R.P. No. 15 "address[es] . . . the time which intervenes between the occurrence of the acts or omissions and the receipt of the complaint by the Judicial Conduct Board"). Mayor Kepics' request for investigation concerned Respondent's conduct that occurred in December of the previous year. His filing was well within the four-year time period set forth in J.C.B.R.P. No. 15. Therefore, Mayor Kepics did not unjustifiably delay filing his complaint against Judge Wilson.

While the criminal records concerning the criminal charges against Mayor Kepics and his arrest were ordered to be expunged four months prior to the filing of his Confidential Request for Investigation, Respondent has not experienced any prejudice as a result. As asserted previously, documents substantiating Mayor Kepics' criminal charge and incarceration exist and are in the possession of the Respondent. In addition, Respondent was able to respond to the allegations charged within the Board Complaint at his deposition. The affirmative defense of laches fails because Mayor Kepics did not unjustifiably delay his filing of his Confidential Request for Investigation, and Respondent is in no way prejudiced in his ability to defend the charges in the Board Complaint.

18. The Board is without sufficient knowledge or information and belief to either admit or deny this allegation. It is, therefore, denied and strict proof thereof is demanded.

19. Denied as improper conclusions of fact and law and legal argument to which no

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