Opinion
1 JD 2017
04-28-2017
IN RE: Mark A. Wilson Magisterial District Judge Magisterial District 27-1-02 27th Judicial District Washington County
Christopher D. Carusone, Esquire Counsel for MDJ Mark Wilson COHEN SEGLIAS PALLAS GREENHALL & FURMAN P.C. 240 North Third Street Seventh Floor Harrisburg, PA 17011 (717) 234-5530 (Phone) (717) 585-6585 (Fax)
OMNIBUS PRETRIAL MOTION
Magisterial District Judge Mark A. Wilson, by and through his undersigned attorney, hereby files the foregoing Omnibus Pretrial Motion pursuant to C.J.D.R.P. 411.
1. On December 11, 2012, Washington County Assistant District Attorney (ADA) Joseph Carroll approved the private criminal complaint of John and Shirley Amon charging Robert L. Kepics with theft by deception, 18 Pa.C.S. § 3922(a)(1) (F3).
2. At the time ADA Carroll approved the felony charge of theft by deception against Mr. Kepics, he did not know that Kepics was the Mayor of Monongahela, Pennsylvania.
3. On December 11, 2012, according to the Complaint, presiding Judge Mark A. Wilson issued a warrant for Kepics' arrest, which was mandatory under Pa.R.Crim.P. 509(2)(a) regardless of whether charges are initiated by private criminal complaint or police complaint.
4. Later that same day, according to the Complaint, Kepics was arrested by Constable Walter P. Fronzaglio and brought before Judge Wilson for preliminary arraignment. The Complaint alleges that Judge Wilson imposed a monetary bail condition of $5,000 and that Kepics was remanded to the county jail until he was released on bond later that same day.
5. According to interviews of Mr. Amon conducted by Board investigator Douglas K. Miller - disclosed to the undersigned pursuant to C.J.D.R.P. 411(E) (mandatory disclosure of exculpatory evidence) - Mr. Amon stated: "MDJ Wilson never encouraged them one way or the other about which option (civil or criminal) to choose. He never filled out any documents for them. He simply gave them the form to fill out when AMON said that he wanted to file a criminal charge. AMON believed that this would be the only way that they would ever get their money back." Mr. Amon also added: "MDJ Wilson is a good judge and that he has done nothing wrong in connection with the Kepics matter." See Exhibit A.
6. According to interviews of ADA Carroll conducted by Board investigator Douglas K. Miller - disclosed to the undersigned pursuant to C.J.D.R.P. 401(D) - ADA Carroll stated: "MDJ WILSON never seemed to be advocating for the private criminal complaint (that is, favoring a criminal over a civil case)." ADA Carroll "believed that the complaint had criminal merit" and "reiterated that MDJ Wilson was not pushing for him to sign the complaint."
7. When ADA Carroll learned from news broadcasts that Kepics was the Mayor of Monongahela, everything changed. ADA Carroll informed Washington County District Attorney Eugene A. Vittone of the situation. According to investigative reports prepared by Board investigator Douglas K. Miller, DA Vittone then called Monongahela Chief of Police Brian Tempest, and told Chief Tempest: "What did you do to your Mayor? Did you arrest your Mayor?" Chief Tempest replied: "No, you did." Immediately prior to his call from DA Vittone, Chief Tempest received phone calls from Mayor Kepics (his boss) and Kepics' wife Nancy Kepics, in an effort to use his authority as Mayor to get himself released from jail.
Indeed, ADA Carroll told Investigator Miller: "If [I] had known that the prospective defendant in the complaint was the Mayor, [I] never would have approved it without discussing it first with District Attorney Gene Vittone."
8. On December 14, 2012, Washington County District Attorney Eugene A. Vittone sent a letter to Judge Wilson withdrawing the criminal charge against Kepics. Shortly thereafter, according to ADA Carroll, DA Vittone demoted him because of his actions in the Kepics case.
9. On February 7, 2013, Kepics' attorney Steven M. Toprani - the former District Attorney of Washington County - filed a Petition to Expunge Criminal Records/Booking Photos in the Washington County Court of Common Pleas. DA Vittone consented to the petition.
10. Later that same day, the Washington County Court of Common Pleas granted the petition and issued an Order requiring the destruction of all records of the case in the possession of Judge Wilson as well as other criminal justice agencies.
11. Judge Wilson promptly destroyed all of his records in the Kepics case in compliance with the Order.
Motion To Dismiss
Doctrine Of Laches
12. The averments set forth above are incorporated by reference as though fully set forth herein.
13. On June 5, 2013, nearly four months after he had Judge Wilson's file of his case destroyed, Kepics filed a Confidential Request for Investigation with the Board.
14. In his Confidential Request for Investigation, Kepics took issue with Judge Wilson's official actions in the handling of his criminal case - the official record of which had been expunged at Kepics' request months earlier.
15. Laches may be invoked in disciplinary proceedings for professional misconduct. In re Lokuta, 964 A.2d 988 (Pa.Ct.Jud.Disc. 2008). "Laches bars relief when the plaintiff's lack of due diligence in failing to timely institute an action results in prejudice to another." Commonwealth ex rel. Pennsylvania Attorney General Corbett v. Griffin, 946 A.2d 668, 676-677 (Pa. 2008). "Such evidence may include establishing that a witness has died or become unavailable, that substantiating records were lost or destroyed, or that the defendant has changed his position in anticipation that the opposing party has waived his claims." Commonwealth ex. rel. Baldwin v. Richard, 751 A.2d 647, 651 (Pa. 2000) (emphasis supplied).
16. Laches may be applied not only to the lack of due diligence of the Board, but also the lack of due diligence of the alleged victim in reporting the matter to the Board. Lokuta, 964 A.2d at 1131 (quoting Lyness v. Commonwealth State Board of Medicine, 561 A.2d 362, 370 (Pa.Cmwlth. 1989) ("We are persuaded that in applying the equitable doctrine of laches in a disciplinary proceeding, the requirement of undue delay may be fulfilled by proving that a victim unjustifiably delayed in reporting an incident to the Board.")) (emphasis in original).
17. Kepics' four-month delay in filing his Confidential Request for Investigation with the Board was unjustified.
18. Judge Wilson did nothing to contribute to Kepics' unjustified delay.
19. Kepics lack of diligence in filing his Confidential Request for Investigation against Judge Wilson resulted in prejudice to Judge Wilson. All of Judge Wilson's records in the Kepics case have been expunged. It is difficult to comprehend how Judge Wilson can be expected to defend himself against allegations arising from the exercise of his official actions in the Kepics' matter when all records of those official actions have been destroyed.
WHEREFORE, Judge Wilson respectfully requests that this Court dismiss Count 1 (¶ 107), Count 2 (¶¶ 123, 127-130), Count 3, Count 4, Count 5 (as to Section A), Count 6 (¶¶ 169-170), and Count 7 (as to Section A) pursuant to the doctrine of laches.
Motion To Dismiss
C.J.D.R.P. 411(d)(3)
20. The averments set forth above are incorporated by reference as if fully set forth herein.
21. On June 19, 2013, the Board requested a complete copy Judge Wilson's file in Commonwealth v. Robert Kepics, CR-416-2012.
22. Six days later, on June 25, 2013, Judge Wilson responded to the Board's request, indicating inter alia that the Kepics case file had been expunged by court order.
23. The expungement of the official case file in the Kepics case made it all the more important for the Board to conduct a prompt investigation of the request for investigation.
24. However, the Board waited until April 8, 2015, before beginning its investigation of Kepics' request - a delay of nearly two years since the filing of the request.
25. Moreover, the Board waited until June 6, 2016, before voting to commence a full investigation of the request - a cumulative delay of three years since the filing of the request.
26. Thereafter, the Board waited until October 07, 2016, before notifying Judge Wilson of the accusation in its Notice of Full Investigation - a cumulative delay of three years and four months since the filing of the request.
27. "The Judicial Officer may challenge the validity of the charges on any legal ground including . . . that the Board violated the procedures governing it." C.J.D.R.P. 411(d)(3).
28. The Internal Operating Procedures of the Judicial Conduct Board of Pennsylvania that were effective on June 5, 2013, in relevant part, provide:
IOP 4.01 EXPEDITIOUS RESOLUTION OF COMPLAINTSJ.C.B.I.O.P. 4.01 (eff. 1/1/10).
It is the policy of the Board that each and every matter shall be brought to a prompt, efficient and fair conclusion commensurate with the available resources of the Board and its staff. Urgent priority shall be assigned to matters that involve the potential for extreme prejudice to the administration of justice, as well as to matters having an immediacy factor such as complaints involving political campaign issues.
29. The Internal Operating Procedures of the Judicial Conduct Board of Pennsylvania that became effective on January 1, 2016, in relevant part, provide:
IOP 3.04 EXPEDITIOUS RESOLUTION OF COMPLAINTSJ.C.B.LO.P. 3.04 (eff. 1/1/16).
It is the policy of the Board that each and every matter shall be brought to a fair conclusion as promptly as possible, consistent with the character of the matter and the resources of the Board and its staff.
A. Prioritization Of Investigations
Urgent priority shall be given to matters based on consideration of the level of the judiciary involved, the danger of extreme prejudice to the administration of justice, and where the matter has garnered great public interest or notoriety through media coverage.
30. The Board violated I.O.P. 4.01 (eff. 1/1/10) and I.O.P. 3.04 (eff 1/1/16) by not conducting a prompt investigation of Kepics' complaint.
31. The Board's delay in conducting its investigation of the Kepics' complaint was unjustified, particularly in light of the Board's allegations in its Complaint that Judge Wilson's conduct in the Kepics case was "so extreme that it brought disrepute upon the judicial office itself" and that it "prejudiced the proper administration of justice." Complaint, Counts 6-7.
32. Judge Wilson has suffered prejudice as a result of the Board's delay. While the full extent of such prejudice will not be known until the undersigned's investigation is complete, Judge Wilson is now required to defend himself in this matter while running for re-election.
33. Judge Wilson did nothing to contribute to the Board's delays outlined above.
WHEREFORE, Judge Wilson respectfully requests that this Court dismiss Count 1 (¶ 107), Count 2 (¶¶ 123, 127-130), Count 3, Count 4, Count 5 (as to Section A), Count 6 (¶¶ 169-170), and Count 7 (as to Section A) pursuant to C.J.D.R.P. 411(d)(3).
Motion For Discovery
C.J.D.R.P. 401
34. The averments set forth above are incorporated by reference as though fully set forth herein.
35. Both the undersigned and counsel for the Board have engaged in a good-faith exchange of correspondence in an effort to resolve all discovery issues. See Exhibit B.
36. While the Board has provided the undersigned with a substantial amount of discovery, the Board has refused to prepare a specific written response to each of the fifteen categories of documents requested by the undersigned in his discovery letter.
37. Moreover, the Board has refused to provide the undersigned with a log identifying with reasonable particularity all information responsive to the undersigned's discovery requests that is being withheld and the basis for non-production.
38. As a result, the undersigned cannot determine whether there is a good-faith basis for challenging the Board's conclusory assertion that the undersigned has received all discovery to which he is entitled under C.J.D.R.P. 401.
39. Among the undersigned's discovery requests is a request for: (a) All exculpatory evidence relevant to the Board's proceedings in JCB 2013-370 and JCB 2016-571, including any evidence of the Board's violations of its own procedures; and (b) Records of all proceedings before the Board concerning Judge Wilson, including but not limited to meeting minutes, subpoenas, testimony, and memoranda.
40. In response to these requests, the Board provided a heavily-redacted excerpt of the minutes of the Board's meetings on June 6, 2016 (approving the Notice of Full Investigation) and February 6, 2017 (authorizing the filing of the complaint). There is no explanation for the redactions, which comprise the vast majority of the information in the minutes. See Exhibit C.
41. Judge Wilson has the right to challenge whether the Board violated the procedures governing its operation. See In re Hasay, 686 A.2d 809, 816-817 (Pa. 1996)("We emphatically reject the assertion that the board's compliance with its rules of procedure is absolutely beyond judicial review. The rules exist in part to insure that due process is accorded judicial officers subject to investigation and prosecution by the board.... Every minor or technical violation of the board's rules may not be a denial of due process, and the appropriate remedy may be a minor matter; nonetheless, the guarantee of due process requires that the board's procedures be reviewable."); C.J.D.R.P. 411(d)(3).
42. Judge Wilson's right to mount such a challenge would ring hollow if he was not entitled to the discovery he has requested from the Board, particularly where he is challenging the Board's delay in the investigation that led to the filing of a Complaint against him.
43. The undersigned has also requested all written or verbal complaints received by the Board regarding Judge Wilson, including but not limited to JCB File 2013-370 and 2016-571. This request included the identity of the complainant(s) and date(s) of receipt.
44. While the Board has provided the undersigned with a copy of the Confidential Request for Investigation submitted by Mayor Kepics in JCB File No. 2013-370, it has refused to produce evidence of any other requests or other complaints against Judge Wilson.
45. Judge Wilson has the right to discover whether any of the other defendants identified in Section B of the Complaint ever filed complaints about their treatment before him.
WHEREFORE, Judge Wilson respectfully requests that this Court issue an Order requiring the Board to prepare a formal response to each of the undersigned's discovery requests, accompanied by a log identifying with reasonable particularity all information responsive to the undersigned's discovery requests that is being withheld and the basis for non-production. Judge Wilson also respectfully requests the right to file a supplemental pre-trial motion based on the undersigned's review of the Board's response/log, including but not limited to a motion for additional discovery. Judge Wilson also respectfully requests that this Court order the Board to comply with his discovery requests outlined in paragraphs 39 and 43, and that any documents withheld be described with reasonable particularity along with the basis for non-production.
Motion For Admission To Judicial Diversion Program
46. The averments set forth above are incorporated by reference as though fully set forth herein.
47. Judge Wilson seeks admission into the Judicial Diversion Program established by this Court in In re Domitrovich, No. 1 JD 14 (2016).
48. Judge Wilson has no prior imposition of discipline.
49. The Complaint does not contain allegations of criminal charges, corruption, or other conduct where the presumptive sanction is suspension or removal.
50. Although Judge Wilson maintains his innocence, he is willing to comply with a Judicial Diversion Program plan if he is afforded the privilege of admission to the program.
WHEREFORE, Judge Wilson respectfully requests that the Court schedule a hearing for his entry into the Judicial Diversion Program.
Respectfully Submitted
/s/_________
Christopher D. Carusone, Esquire
Counsel for MDJ Mark Wilson
COHEN SEGLIAS PALLAS
GREENHALL & FURMAN P.C.
240 North Third Street
Seventh Floor
Harrisburg, PA 17011
(717) 234-5530 (Phone)
(717) 585-6585 (Fax) Date: April 28, 2017
Image materials not available for display.