SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-2264-20T2

NOREEN FLUGGER and MARGARET

HAYES,

Plaintiff-Appellants, On Appeal from Final Order of

Superior Court of Bergen
VS. County, Law Division

A&A RIDGEWOOD REGISTERED

PROFESSIONAL NURSES ASSOC., Sat Below:
JANET KELLY, JANET DOBBS,
KATHLEEN BISI, LUCILLE HAUBNER, Robert C. Wilson, J.S.C.
MEYERSON, FOX, MANCINELLI &
CONTE, P.A., JANE DOES 1-10,
(said names being fictitious, true
names presently unknown), ABC CORP
I-X(said names being fictious, true
names presently unknown),

Defendant-Respondents.

BRIEF OF PLAINTIFF-APPELLANTS

MARTIN V. ASATRIAN, ESQ.

ASATRIAN LAW GROUP, LLC
15 Warren Street, PH-West
Hackensack, New Jersey 07601
(201) 663-3164
Attorneys for Plaintiff-Appellants
martinasatrianlaw@[Link]

MARTIN V. ASATRIAN, ESQ.

Of Counsel
Attorney ID: 003542001

JEFFREY ZAJAC, ESQ.

On the Brief
Attorney ID: 029411985
 TABLE OF CONTENTS

PRELIMINARY STATEMENT 1

STATEMENT OF PROCEDURAL HISTORY 3

STATEMENT OF FACTS 5

STATEMENT OF THE STANDARD OF REVIEW 15

LEGAL ARGUMENT

Point I (Pa 619-621) 16

JUDGE WILSON COMMITTED REVERSIBLE ERROR IN

DENYING THE PLAINTIFFS’ MOTION TO RECUSE HIM
FROM THIS CASE.

A. Judges Must Step Aside From Proceedings In 17

Which Their Impartiality Or the Appearance
of Their Impartiality Might Reasonably Be
Questioned.

B. Judge Wilson’s Denial of the Plaintiffs’ Motion

for Recusal Represents Reversible Error.

C. The Appellate Division’s Recent Decision in 21

the Bergen Catholic Litigation Underscores
Judge Wilson’s Inability to Act In An Impartial
Manner in Cases In Which Plaintiffs’ Counsel
Is Involved.

D. Judge Wilson’s Reasoning In Support of His 24

Denial of the Plaintiffs’ Recusal Motion Is
Untenable and Without Support.

i
 Point II (Pa 622-638) 26

BECAUSE THERE WERE MATERIAL FACTS IN DISPUTE,

JUDGE WILSON ERRED IN GRANTING THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT.

CONCLUSION 31

ii
 TABLE OF JUDGMENTS, ORDERS AND RULINGS

Order denying Recusal motion Pa 619

filed December 18, 2020

Summary Judgment Order Pa 486

filed March 22, 2021

Written Decision Pa 488

filed March 22, 2021

TRANSCRIPT REFERENCES

“1T” refers to Law Division transcript dated January 10, 2020

“2T” refers to Law Division transcript dated March 19, 2021

iii
 TABLE OF AUTHORITIES

Cases

A.A. v. Bergen Catholic High School (Christian Brothers), A-

1053-20, 2021 WL 3610367 (App. Div. Aug. 16, 2021) . 22, 23, 24,

25

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.

Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986) ................ 31

Barber v. CSX Distribution Servs. 68 F.3d 694, 702 (3d Cir

1995) ....................................................... 28

Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520,

523 (1995) .................................................. 31

Canesi v. Wilson, 158 N.J. 490, 521 (1999).................... 30

Craig v. Suburban Cablevision, Inc. 140 N.J. 623, 629 (1995).. 28

DeAngelis v. Hill, 180 N.J. 1, 12 (2004)...................... 32

DeNike v. Cupo, 196 N.J. 502, 514 (2008).................. 18, 19

In re Advisory Letter No. 7-11 of Supreme Court Advisory Comm.

on Extrajudicial Activities, 213 N.J. 63, 75 (2013) ......... 18

In re Reddin, 221 N.J. 221, 227 (2015)........................ 18

Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 71-72 (App.

Div. 2004) .................................................. 15

Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167

(App. Div. 1998) ............................................ 15

iv
Romano v. Brown R. Williamson Tobacco Corp. 284 N.J. Super 543,

550 (App. Div. 1995) ........................................ 30

Romano v. Brown Williamson Tobacco Corp., 284 N.J. Super 543

(App. Div. 1995) ............................................ 28

State v. Marshall, 148 N.J. 89, 276 (1997).................... 19

State v. McCabe, 201 N.J. 34, 38 (2010)....................... 19

State v. McCabe, 201 N.J. 34, 45 (2010)....................... 17

Statutes

N.J.S.A. §§ 10:5-1 to 5-38.................................... 26

Other Authorities

Code of Judicial Conduct, Rule 3.17(B)................. 18, 24-25

Code of Judicial Conduct, cmt. 3 on Rule 2.1 (2016) . . . . . 18

v
 PRELIMINARY STATEMENT

This appeal involves the a claim of retaliatory employment

actions under the New Jersey Law Against Discrimination against

founding members and former officers of the A&A Ridgewood Registered

Professional Nurses Association.

Proper adjudication on the merits of the Plaintffs’ claims was

marred by the unfortunate bias and vindictiveness demonstrated by the

trial judge, the Honorable Robert C. Wilson, J.S.C. of the Law

Division of Bergen County.

The record shows that when Judge Wilson was presiding over

the instant case, he was (1) a defendant in a case brought by

Plaintiffs' counsel in the instant case, and (2) under

investigation for over three months by the Supreme Court of New

Jersey Advisory Committee on Judicial Conduct by judicial

complaints filed by both Plaintiffs.

The record also shows Judge Wilson making various

inflammatory and biased comments in cases in which Plaintiffs’

counsel was involved as an attorney.

In addition, a very recent Appellate Division decision

reversed Judge Wilson’s discovery order in a separate case

compelling Plaintiffs’ counsel to produce his cell phone records,

1
a decision which underscores his inability to perform his judicial

duties with the requisite impartiality.

Judge Wilson’s refusal to recuse himself from the proceedings

below represents an extraordinary dereliction of his judicial

discretion. His denial of the Plaintiffs’ motion for recusal was

erroneous, and constitutes a sound ground for the vacating the

subsequent summary judgment order entered in favor of the

Defendants.

The recusal issue involves not the mere correcting of errors,

but the constitutional right to an unbiased judge, and the duty of

a judge to recuse himself or herself from a case.

Further infecting the decision below was Judge Wilson’s grant

of summary judgment in favor of the Defendants. Because material

issues of facts were in dispute, the Defendants were not entitled

summary judgment, particularly with respect to their claim of

employment retaliation under the New Jersey Law Against

Discrimination.

2
 STATEMENT OF PROCEDURAL HISTORY

This matter initially began on July 30, 2018, when the

Plaintiff-Appellants, Noreen Flugger and Margaret Hayes

(“Plaintiffs”) filed an Order to Show Cause with Temporary

Restraints and Verified Complaint in the Chancery Division of

Bergen County in order to freeze a donation to Ramapo College from

the Defendant-Respondent, A & A Ridgewood Professional Nurses

Association, Inc. (“A & A”) (“Chancery Case”) [Pa 488].

On August 2, 2018 at the return date of the hearing on the

temporary restraints, the Honorable James J. DeLuca, J.S.C.

entered an Order temporarily restraining A & A from proceeding

with the planned donation to Ramapo College. [Pa 480-483].

On September 13, 2018 at the return date of the Order to Show

Cause, Judge DeLuca vacated the temporary restraints and denied

Plaintiffs request for a preliminary injunction. On April 5, 2019,

Judge DeLuca granted Summary Judgment and dismissed the

Plaintiffs' complaint in the Chancery Case. [Pa 73-89].

On October 29, 2019, the Plaintiffs filed the Complaint in

the instant case. [Pa 1-22]. Prior to serving the Complaint on

any of the Defendants, Plaintiffs filed an Amended Complaint (Pa

91-111), to which the Defendant-Respondents (“Defendants”) filed

an Answer. [Pa 23-34].

3
 In December 2019, the Defendants filed a motion to dismiss,

on the basis that Plaintiffs' claims were barred by the entire

controversy doctrine and failed to state a claim upon which relief

could be granted. [Pa 490]. After entertaining oral argument

(1T), the Honorable Robert C. Wilson, J.S.C. of the Law Division

of Bergen County dismissed Count 1 (Defamation) and Count 2

(Emotional Distress) of the Complaint, and dismissed all counts of

the Complaint as to the Defendant-Respondents, Meyerson, Fox,

Mancinelli & Conte, P.A. (Counts 9 through 11). [Pa 129-130].

On November 20, 2020, the Plaintiffs filed a motion for

recusal of Judge Wilson from presiding in the instant case. [Pa

486-618]. On December 18, 2020, this motion was denied by Judge

Wilson by way of an Order and attached Rider. [Pa 619-621].

On January 28, 2021, the remaining Defendants in the case

filed a motion for summary judgment (Pa 36-266), which was opposed

by the Plaintiffs (Pa 267-485). On March 22, 2021, Judge Wilson

granted the Defendants’ motion (Pa 622-632) and filed a written

decision. [Pa 624-638].

The Plaintiffs filed a timely Notice of Appeal with the

Superior Court, Appellate Division. [Pa 639-644].

4
 STATEMENT OF FACTS

In the Chancery Case, the Plaintiffs sought the return of

"monies improperly disbursed to Ramapo College" and to freeze A&A's

assets and to appoint a receiver to manage A&A's affairs. [Pa 48-

59].

With respect to this action, Flugger certified that she and

Kelly engaged in a “protected activity” in filing the Chancery

Case, which aimed to report unlawful acts committed by Defendant-

Respondent, Janet Kelly (“Kelly”), the President of A & A, and the

Defendant-Respondent, Janet Dobbs (“Dobbs”), as well as other

members of A & A. [Pa 298]. Flugger further certified as follows:

Margaret Hayes and I reported the unlawful acts at the

formal meetings that were transcribed by the secretary.
I was very concerned about promoting the excellence of
the professional nursing practice, elevating the
professional status of registered nurses, the mismanaged
affairs by Janet Dobbs and Janet Kelly under the
corporate bylaws, I was concerned about long term
noncompliance with applicable statutes, federal and
state, as well as commercially acceptable practices.
Margaret and I were very concerned of unlawful de-
frauding of the IRS by Janet Kelly and Janet Dobbs, and
we were also concerned that the leadership of A&A
officers have made a payment from the corporate funds to
Ramapo College without obtaining proper voting
authorization from the board. A&A registry through Janet
Dobbs and Janet Kelly continued to evade our inquiries,
attempted to intimidate and bully Margaret and I in order
not to raise such sensitive issues at the meetings,
Margaret and I raised issues that fall within the
protected activity of raising unlawful and
discriminatory practices. Margaret and I hired and
5
 retained the services of Joseph A. Cerami who filed a
complaint on July 27, 2018 raising these issues in order
to appoint a receiver to manage the affairs of the A&A
Registry and provide an accounting of the finances of
the corporation which we had a strong reason to know
were being embezzled by Janet Kelly and Janet Dobbs.
Margaret and I contacted U.S. attorney office for
unlawful practices by A&A Registry, we also filed
complaints with the equal opportunity commission, we
also filed complaints with the nursing board of New
Jersey, we also filed complaints with the New Jersey
Office of Attorney General, we filed civil litigation
with the Chancery division of Bergen County, through our
attorney Mr. Cerami we tried our best to make sure as a
founding member that the A&A registry was being managed
properly, lawfully, and it was my fiduciary duty to have
a full accounting on what was going on. Instead of being
fully transparent and fully complaint with the IRS and
other agencies Janet Kelly and Janet Dobbs would say
not to worry about it and that the IRS would understand.
Margaret and I found that to be preposterous and when we
expressed our concerns to the board we would be harassed,
yelled at, silenced, intimidated, threatened, and
otherwise deprived of our freedom to engage in a
protected activity such as make grievances, make
complaints of discrimination, and make complaints of
harassment.

[Pa 298-299].

The Chancery Case complaint was filed on July 27, 2018. [Pa

52].

A little more than three weeks later, on August 23, 2018, the

Defendants removed Flugger as a member, Trustee and Founder Member

of A & A. [Pa 200-218]. The alleged reason was “insubordination.”

[Pa 40].

6
 However, Kelly under oath could not produce a complaint to

human resources about Flugger's alleged insubordination. [Pa 280].

The Defendant-Respondent, Kathleen Bisi (“Bisi”), under oath,

contradicted Kelly not remembering when such an alleged

insubordination occurred and not remembering whether or not

Flugger changed the voicemail greeting. None of the Defendants

under oath could refer to any employee handbook that was handed

out to members of A&A. [Pa 280].

The Defendants also alleged the following reason for her

removal:

Ms. Flugger's behavior and conduct became incompatible

with her role within the organization, including by
calling her colleagues "goofballs" in an email to A&A
members.

[Pa 41]. However, Flugger testified under oath that she calls her

beloved grandchildren “goofballs” because she loves them, and

there is nothing incompatible with the use of a statement such as

“goofball.” There is no employee handbook that specifies what

language is compatible and incompatible with the organization, and

there are no employee guidelines as to sensitivity training, age

discrimination, bullying and harassment, and there is no

designated human resource director to express grievances. [Pa 282,

431].

7
 Kelly and Dobbs have testified under oath that the Plaintiffs

are “untrustworthy, mean” and other words utilized at meetings to

denigrate and silence the Plaintiffs. [Pa 282].

On October 10, 2018, the Defendants terminated Flugger’s

employment with A & A as a clinical coordinator. The reason

alleged by the Defendants was that because of a declining work

load, they needed to eliminate one of the two clinical coordinator

positions. [Pa 42].

On August 23, 2018, Kelly, as President of A & A, told the A

& A Board that Andrew Bolson gave her legal authorization to

terminate Flugger one month after she filed the litigation.

However, Mr. Bolson denied having given Kelly authorization to

terminate Flugger. [Pa 276, 278].

The Defendant Bisi, under oath, contradicted her co-

defendants reasons for retaliating against Flugger. [Pa 278].

Kelly chose to act as an attorney at the expense of Noreen

Flugger and Margaret Hayes, and when it comes to testifying under

oath, she stated that she is no longer an attorney but a rather a

nurse. [Pa 276].

Dobbs issued a check for $7,000 to Kelly without the A & A

board's knowledge and without a vote, in violation of A&A bylaws

and regulations. [Pa 271]. During the deposition of the Defendant-

8
Respondent, Janet Kelly (“Kelly”), the following colloquy

occurred:

Q. Do you know whether or not from a factual perspective

obtaining $7,000 in legal fees while being a member of
the board, that was a breach of your fiduciary duty?

A. You know what, I wouldn't do it again.

Q. Why not?

A. Because it's just what you said.

[Pa 356]. Kelly admitted the her actions “could be perceived as

self dealing.” [Pa 357]. Kelly further admitted and conceded her

misappropriation of funds from A&A registry by testifying that she

received the $7,000 check from the Ridgewood association. [Pa 270].

The $7,000 received by Kelly was for legal work allegedly

performed in 1998, when she was the Managing Director of A & A.

The Plaintiffs’ expert opined that Kelly getting paid as an

attorney for A & A while also working as Managing Director created

a conflict of interest. [Pa 68, 276].

When asked at deposition whether she knew the reason for

Flugger’s termination, Kelly replied that there were “a number of

reasons and they have been laid out as well and they are in the

minutes.” [Pa 310]. At Kelly’s deposition, the following colloquy

occurred:

9
 Q. Do you ever deviate from the bylaws in running these
meetings?

A. Well, I think we have deviated over the years, yes.

In fact , this is the first year we've actually looked
at the bylaws. I don't think we actually even consulted
the bylaws in maybe 15 or 20 years. And this year because
of some questions that were raised we began to examine
the bylaws, yeah .

[Pa 317-318].

Kelly testified that she indeed gave the wrong medication to a

disabled twenty-year-old patient, and Flugger pointed this out to

her. Kelly failed to mention in her certification that she was

banned from ever working in that school system again because she

could have killed the patient with her incompetence, reckless

indifference. [Pa 275-276].

Motion for Recusal of Judge Wilson

On November 20, 2020, prior to the Defendants’ motion for

summary judgment, the Plaintiffs filed a motion in the instant

case for recusal of Judge Wilson, which was summarily denied by

Judge Wilson. [Pa 486-618]. Various events, both in the instant

case and in other cases litigated by Plaintiffs’ counsel before

Judge Wilson, formed the basis for this motion.

10
 On February 14, 2020, the Plaintiff-Appellant, Noreen Flugger

(“Plaintiff”) filed a judicial complaint against the Honorable

Robert C. Wilson concerning her experience in the Bergen County

Superior Court in the instant case. Five days later, Luis H.

Toronto wrote Flugger, informing her that during an investigation,

a judge who is the subject of a grievance may be informed of its

allegations so that the judge may provide the advisory committee

on judicial conduct with his or her comments. [Pa 290].

The Plaintiff-Appellant, Margaret Hayes (“Hayes”) also filed

a judicial complaint against Judge Wilson as a result of her

experiences in the Bergen County Superior Court in the instant

case. [Pa 290, 472-473].

The attorney for the Plaintiffs, Martin V. Asatrian has filed

also filed a judicial complaint for misconduct against Judge

Wilson, a matter that was pending at the time of the litigation of

the instant case. Asatrian also filed a lawsuit against Judge

Wilson under the docket number PAL-L-3650-20. Judge Mizdol, the

assignment judge, transferred this case to Passaic County so that

Asatrian could be afforded a fair and a partial hearing. [Pa 290].

Asatrian was also a third-party defendant in Bergen County

case entitled A.A. v. Bergen Catholic High School, et al., Docket

Number BER-L-1440-18 (“Bergen Catholic”). Based upon Judge

11
Wilson’s inappropriate comments on the record, a motion was filed

in Bergen Catholic for recusal of Judge Wilson. [Pa 291].

On August 8, 2019, in Bergen Catholic, Judge Wilson made the

following comments on the record:

a. Judge Wilson stated: “Did you propound

interrogatories and notices to produce on the
plaintiff.” Ms. Roth representing Bergen Catholic
stated: “I don't believe we did.”

b. Judge Wilson stated: “I guess the festivities would

begin” (referring to a case involving the alleged
sexual assault of a minor).

c. Judge Wilson stated: “Motions to dismiss (in lieu

of filing an answer) are to be done sparingly unless
they can be proved that there is no possibility of
any cause of action that can be laid. As such we
need to do discovery to find that out. They would
be without prejudice so all we ended up doing was
having your client be sued again when more
information is added to the complaint it would be
a waste of time.

[Pa 291].

On January 10, 2020, Judge Wilson in the instant case heard

oral arguments as to whether dismiss the Plaintiffs’ Complaint

against the Defendant-Respondent law firm, Meyerson, Fox,

Mancenelli, and Conte, P.A. [1T]. Contrary to his position in

Bergen Catholic, Judge Wilson did not allow for the Plaintiff,

Margaret Hayes, who was still a member of A&A Registry, to have

limited discovery against the Meyerson law firm. As noted above,

12
Judge Wilson in Bergen Catholic stated that dismissing a case with

prejudice without discovery is a complete waste of time. [Pa 291-

292].

The Meyerson law firm has two retired Bergen County judges

who served with Judge Robert C. Wilson, including retired Bergen

County Judge Caroll and retired Bergen County Judge Conte. Judge

Wilson failed to disclose this fact when deciding the motion to

dismiss filed by the Meyerson firm in this case. Instead, Judge

Wilson dismissed each and every count against the Meyerson firm in

lieu of filing an answer and in the absence of any limited

discovery. [Pa 292].

On December 23, 2020, in Bergen Catholic, counsel for the

plaintiff moved for disqualification of Judge Wilson, pursuant tor

Rule 1:12-2. This motion was denied. Judge Wilson also granted a

motion in that case to dismiss to the Newark Archdiocese's motion

to dismiss the complaint. [Pa 292].

In Bergen Catholic, Judge Wilson refused to consider

dismissing the third-party complaint against Mr. Asatrian (counsel

for Plaintiff-Appellants in the instant case), thus forcing

Asatrian to participate in discovery for over two years. In his

initial case management order, Judge Wilson ordered Asatrian, a

third-party defendant, to be deposed before the plaintiff and

defendants in that matter, in contradiction to Judge Wilson's own

13
procedure for depositions, which stated that a plaintiff goes

first, and then defendants, which he termed the "established

practice in almost every case, every time." [Pa 293].

In Bergen Catholic, the Plaintiff filed an interlocutory

appeal of the Defendant’s discovery order. On August 16, 2021,

the Appellate Division reversed the Defendant’s Order in that

matter. A.A. v. Bergen Catholic High School (Christian Brothers),

A-1053-20, 2021 WL 3610367 (App. Div. Aug. 16, 2021) [Pa 645-657].

14
 STATEMENT OF STANDARD OF REVIEW

In reviewing a decision on summary judgment rendered by the

trial court, the Appellate Division utilizes the same summary

standards governing summary judgments at trial.

Thus, the Appellate Division decides first whether there was

a genuine issue of fact. If there was not, it then decides whether

the lower court’s ruling on the law was correct. Prudential

Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

As noted in Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55,

71-72 (App. Div. 2004):

* * * in determining a motion for summary judgment, the

judge must decide whether “the competent evidential
materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to
permit a rational fact/finder to resolve the alleged
disputed issue in favor of the non-moving party.”
Summary judgment must be granted if “the pleadings,
depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a
judgment or order as a matter of law.” R. 4:46-2(c).
“If there exists a single, unavoidable resolution of the
alleged disputed issue of fact, that issue should be
considered insufficient to constitute a ‘genuine’ issue
of material fact for purposes of Rule 4:46-2 . . . [W]hen
the evidence ‘is so one-sided that one party must prevail
as a matter of law,’ the trial court should not hesitate
to grant summary judgment. On appeal, we apply the same
standard.

[citations omitted; emphasis added].

15
 LEGAL ARGUMENT

POINT I

(Pa 619-621)

JUDGE WILSON COMMITTED REVERSIBLE ERROR IN

DENYING THE PLAINTIFFS’ MOTION TO RECUSE HIM
FROM THIS CASE.

The record shows that when Judge Wilson was presiding over

the instant case, he was (1) a defendant in a case brought by

Plaintiffs' counsel in the instant case, and (2) under

investigation for over three months by the Supreme Court of New

Jersey Advisory Committee on Judicial Conduct (see docket number

ACJC 2021-145) by judicial complaints filed by the Plaintiff-

Appellants, Noreen Flugger and Margaret Hayes.

The record also shows Judge Wilson making various

inflammatory and biased comments in cases in which Plaintiffs’

counsel was involved as an attorney.

In addition, a very recent Appellate Division decision

reversed Judge Wilson’s discovery order in a separate case

compelling Plaintiffs’ counsel to produce his cell phone records,

a decision which underscores his inability to perform his judicial

duties with the requisite impartiality.

Judge Wilson’s refusal to recuse himself from the proceedings

below represents an extraordinary dereliction of his judicial

16
discretion. His denial of the Plaintiffs’ motion for recusal was

erroneous, and constitutes a sound ground for the vacating the

summary judgment order entered in favor of the Defendants.

A. Judges Must Step Aside From Proceedings In

Which Their Impartiality Or the Appearance
of Their Impartiality Might Reasonably Be
Questioned.

Recusal motions are “entrusted to the sound discretion of

the judge and are subject to review for abuse of

discretion.” State v. McCabe, 201 N.J. 34, 45 (2010). The

Appellate Division reviews de novo whether the judge applied the

proper legal standard. Ibid.

A judge must act in a way that “promotes public confidence in

the independence, integrity and impartiality of the judiciary, and

shall avoid impropriety and the appearance of impropriety.” Code

of Judicial Conduct Rule 2.1; See also, In re Reddin, 221 N.J.

221, 227 (2015) (noting “the ‘bedrock principle’ that a judge

should uphold the integrity and independence of the Judiciary,”

quoting DeNike v. Cupo, 196 N.J. 502, 514 (2008); In re Advisory

Letter No. 7-11 of Supreme Court Advisory Comm. on Extrajudicial

Activities, 213 N.J. 63, 75 (2013) (stating “the purpose of our

judicial disqualification provisions ‘is to maintain public

confidence in the integrity of the judicial process, which in turn

17
depends on a belief in the impersonality of judicial decision

making.’”

“An appearance of impropriety is created when a reasonable,

fully informed person observing the judge's conduct would have

doubts about the judge's impartiality.” Code of Judicial Conduct,

cmt. 3 on Rule 2.1 (2016); DeNike, 196 N.J. at 517 (enunciating

the standard). Judges must step aside from “proceedings in which

their impartiality or the appearance of their impartiality might

reasonably be questioned.” Code of Judicial Conduct, Rule 3.17(B).

A judge must also do so if “there is any other reason which might

preclude a fair and unbiased hearing and judgment, or which might

reasonably lead counsel or the parties to believe so.” Rule 1:12-

1(g).

A movant need not show actual prejudice; “potential bias”

will suffice. State v. Marshall, 148 N.J. 89, 276 (1997); See also,

Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 2001). “In

other words, judges must avoid acting in a biased way or in a

manner that may be perceived as partial.” DeNike, 196 N.J. at 514.

Emphasis is drawn to the undisputed fact that the appearance

of impropriety alone may require the recusal of a judge. State v.

McCabe, 201 N.J. 34, 38 (2010). In this respect, Canon 2 of the

Judicial Code of Conduct states:

18
 A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES

Commentary: Public confidence in the judiciary is eroded

by irresponsible or improper conduct by judges. A judge
must avoid all impropriety and appearance of impropriety
and must expect to be the subject of constant public
scrutiny. A judge must therefore accept restrictions on
personal conduct that might be viewed as burdensome by
the ordinary citizen and should do so freely and
willingly.

B. Judge Wilson’s Denial of the Plaintiffs’ Motion

for Recusal Represents Reversible Error.

The well established and unequivocal “appearance of

impropriety” standard was flouted by Judge Wilson in the instant

case, and unfortunately caused him to preside over a case which

required summary recusal.

While not an “automatic” basis for recusal (see Section “D”

below), the fact that Judge Wilson was sued by the Plaintiffs’

attorney and the subject of ethical complaints filed by both

Plaintiffs provides a sound basis for concluding that Judge

Wilson’s continued participation in the instant case created, at

the very least, an appearance of impropriety.

However, this was not the sole evidence presented in support

of the Plaintiffs’ recusal motion. Also of record are the

following instances of conduct demonstrating bias -- at least

19
the appearance of bias -- by Judge Wilson against Plaintiffs’

counsel:

• the comments and rulings by Judge Wilson in the Bergen

Catholic litigation in which Plaintiffs’ counsel was a
party

• the fact that Meyerson law firm, a Defendant in the

instant case, has two retired Bergen County judges who
served with Judge Robert C. Wilson, including retired
Bergen County Judge Caroll and retired Bergen County
Judge Conte

• Judge Wilson’s refusal to allow discovery by the

Plaintiff, Margaret Hayes, in the instant case, with
respect to the Myerson law firm

• the Appellate Division’s reversal of Judge Wilson’s

erroneous discovery ruling in Bergen Catholic, which
compelled discovery of the Plaintiffs’ attorney’s cell
phone records, a ruling which was reversed for multiple
judicial errors; among other things, the Appellate
Division termed Judge Wilson’s ruling as “harassing
discovery”

• Judge Wilson’s comment directed at Plaintiffs’ counsel

during the 2020 oral argument in the instant case: “Well, I
don’t know if you know what constitutional right means.”
[1T11-17 to 18]

• Judge Wilson’s forcing Plaintiffs’ counsel -- a third party

defendant in the Bergen Catholic case -- to be deposed
prior to the plaintiff and defendants in that matter

Accordingly, the totality of circumstances in the instant

case compels a conclusion that “a fully informed person observing

the judge's conduct would have doubts about the judge's

20
impartiality.” Code of Judicial Conduct, cmt. 3 on Rule 2.1

(2016).

C. The Appellate Division’s Recent Decision in

the Bergen Catholic Litigation Underscores
Judge Wilson’s Inability to Act In An Impartial
Manner in Cases In Which Plaintiffs’ Counsel
Is Involved.

An August 16, 2021 decision provides further support for the

Plaintiff’s position on appeal, namely, the Appellate Division’s

decision in A.A. v. Bergen Catholic High School (Christian

Brothers), A-1053-20, 2021 WL 3610367 (App. Div. Aug. 16, 2021)

(“Bergen Catholic”). [Pa 645-657].

In Bergen Catholic, Judge Wilson ordered Plaintiffs’ counsel

Martin Asatrian, Esq. (“Asatrian”), a third-party defendant in

that case, to produce his telephone records to the defendants,

despite the attorney-client client privilege, and despite the fact

that the plaintiff’s claim against the defendant in that matter

had yet to resolve. Judge Wilson also denied Asatrian’s request

for a stay pending a motion for leave to appeal to the Appellate

Division. [Pa 645].

The Appellate Division found that Judge Wilson abused his

discretion, offered “specious” reasoning to justify aspects of his

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decision (Pa 656), and made his determination on a “mistaken

understanding of the applicable law” in requiring the production

of discovery. [Pa 653].

The Appellate Division found that a log of calls and texts

would not help the third-Party plaintiff in that matter, David

Bell, substantiate his civil conspiracy claim, and, if it was in

fact the content of the calls and texts that Bell was seeking,

this material would be protected by N.J.R.E. 408. [Pa 654-655].

The Appellate Division further held that Judge Wilson did not

substantiate his findings, and noted that while it would ordinarily

remand to the trial court to make the necessary findings of facts

and rules of law, it was not doing so here, as no point would be

served if ultimately no finding could protect the Plaintiff from

potential breaches of the attorney-client privilege or the rule

against disclosure of settlement negotiations. [Pa 656].

The Appellate Division was further troubled by how a claim

for malicious prosecution can even exist at this stage in the

Bergen Catholic case, since the plaintiff’s claim against David

Bell in that case is still ongoing. As noted by the Appellate

Division:

This arguably harassing discovery is being pursued on

the third-party complaint when it may itself be found to
be frivolous, if A.A.'s complaint, or some portion of
it, is ultimately deemed meritorious. To sue for
22
 malicious prosecution when the "prosecution" is not
over—including the timing of any appeals—is premature.

[Pa 653; emphasis added].

The Appellate Division found further fault with the

proceedings, stating that it questions how counsel for Bell and

other defendants can continue their representation of their

clients when they are claiming “they are witnesses to the

conversations that constitute the foundation for the frivolous

litigation claim.” [Pa 655]. In this respect, the Appellate

Division comments:

Unless Bell's attorney and the other defendants' counsel

intend to abandon their clients in the midst of the
underlying litigation brought by A.A. against
defendants, it is yet another mystery as to how their
representation could continue.

[Pa 655].

Thus, the Appellate Division found multiple errors by Judge

Wilson in entering the erroneous discovery order in Bergen

Catholic. The fact that the Court reversed the Defendant’s order

on appeal without remand underscores the egregiousness of Judge

Wilson’s treatment of Asatrian in the various cases outlined in

the record.

23
 D. Judge Wilson’s Reasoning In Support of His
Denial of the Plaintiffs’ Recusal Motion Is
Untenable and Without Support.

Accompanying Judge Wilson’s Order denying the Plaintiffs’

motion for recusal was a Rider, which states the following in

relevant part:

The Court finds that there is no basis for recusal cited

nor any known by the Court. Previous dissatisfaction
with a Court’s ruling is of no basis for recusal. The
Court also notes that movant's counsel's recently filed
action entitled Asatrian v. Wilson BER-L-7241-20 (PAS-
L-3650-20) is not a basis for disqualification under
Canon 3 Rule 3:17.

[Pa 621]. Although not specifically relied upon, the Plaintiff

surmises that Judge Wilson here impliedly relied upon subsection

(E) of the cited Rule 3:17, which states:

A judge shall not be automatically disqualified upon

learning that a complaint has been filed against the
judge with the Advisory Committee on Judicial Conduct,
litigation naming the judge as a party, or any other
complaint about the judge by a party. If, however, the
judge concludes that there is a reasonable basis to
question the court’s impartiality, the judge may recuse
himself or herself. A judge shall promptly disclose to
the parties to the pending litigation that a complaint
has been filed or made.

[emphasis added].

The Plaintiffs’ position on the provision is two-fold.

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 First, the term “automatically” underscores the fact that

recusal can be appropriate where a judge has been named as a

defendant in litigation or the subject of a party’s ethical

complaint. Here, we have both situations. Judge Wilson was named

as a Defendant in a case in which the Plaintiffs’ attorney was the

plaintiff (Asatrian v. Wilson, PAL-L-3650-20).

Second, the Passaic County action against Judge Wilson and

the ethical complaints filed against him do not represent the sole

reasons for recusal, as detailed in Section (C) above.

In sum, the issue of recusal here is not merely that of

erroneous judicial decisions -- the recent Appellate Decision

constituting one among several -- but the fact that Judge

Wilson’s vindictiveness towards and overt bias against Asatrian

rendered him unfit to sit as judge in the instant case. The issue

is not simply the correcting of errors, but the constitutional

right to an unbiased judge, and the duty of a judge to recuse

himself or herself from a case.

At the end of the day, the basis for recusal resides in

subsection (B)(1) of Rule 3:17, which states:

Judges shall disqualify themselves if they have a

personal bias or prejudice toward a party or a party’s
lawyer or have personal knowledge of disputed
evidentiary facts involved in the proceeding.

[emphasis added].
25
 POINT II

(Pa 622-638)

BECAUSE THERE WERE MATERIAL FACTS IN DISPUTE,

JUDGE WILSON ERRED IN GRANTING THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT.

Because material issues of facts were in dispute, the

Defendants were not entitled summary judgment, especially with

respect to their claim of employment retaliation under the New

Jersey Law Against Discrimination3 (“LAD”).

To establish a cause of action under the LAD based upon

retaliation, a plaintiff must show that: (1) he or she engaged in

a protected activity, (2) he or she subsequently suffered an

adverse employment action and (3) there is a causal link between

the protected activity and adverse action, Craig v. Suburban

Cablevision, Inc. 140 N.J. 623, 629 (1995).

Engaging in a protected activity does not require that a suit

has been filed or even that plaintiff has resorted to any formal

or informal complaint mechanism of the employer, or to the EEOC or

comparable State agency. It does however, require a plaintiff to

make known to the employer concerns regarding a possible violation

of the LAD. Barber v. CSX Distribution Servs. 68 F.3d 694, 702

3 N.J.S.A. §§ 10:5-1 to 5-38.

26
(3d Cir 1995); Romano v. Brown Williamson Tobacco Corp., 284 N.J.

Super 543 (App. Div. 1995).

The acts constituting retaliatory conduct against the

Plaintiff are fully detailed above, which require no repetition

here. In sum, the record shows that the Flugger, a founding member

of A & A and long-term employee, filed the Chancery Case against

the Defendants on July 27, 2018. This act represented a “protected

activity” under the LAD.

A little more than three weeks later, on August 23, 2018, the

Defendants removed Flugger as a member, Trustee and Founder Member

of A & A. On October 10, 2018, the Defendants terminated Flugger’s

employment with A & A as a clinical coordinator.

This timing of these events provides a powerful basis for

showing that the Plaintiff engaged in a protected activity, and

that adverse employment action was quite clearly tied to the

Plaintiff’s protected activity. Thus, the required causal link

was established on at least a prima facie basis.

The Defendants’ offered explanations for the termination of

Flugger’s trustee position and employment were allegations of

“insubordination” and declining case load. However, evidence

produced during discovery -- outlined on pages 6 through 9 above

-- provide a rebuttal to the Defendants’ asserted reasons for

termination, and created an issue of fact as to whether the

27
Defendants’ basis for termination was “pretextual.”

In sum, “temporal proximity” between the activity and action

will allow an inference of retaliation. Romano v. Brown R.

Williamson Tobacco Corp. 284 N.J. Super 543, 550 (App. Div. 1995).

Further, bias and pretext may be demonstrated by weaknesses in the

proffered reasons and plausible inconsistencies. Romano v. Brown

R. Williamson Tobacco Corp., 284 [Link] at 551.

As a result, material issues of fact exist in this matter,

which should have precluded the grant of summary judgment. Well

established principles support this conclusion.

The criteria governing motions for summary judgment are

contained in Rule 4:46-2(c), which provides:

The judgment or order sought shall be rendered forthwith

if the pleadings, depositions, answers to
interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a
matter of law.

In the instant case, in opposing the Defendants’ motion, the

Plaintiffs’ version of the facts and all favorable inferences that

may be drawn from these facts are assumed to be true. Canesi v.

Wilson, 158 N.J. 490, 521 (1999); Brill v. Guardian Life Insurance

Co. of America, 142 N.J. 520, 523 (1995). In Brill, the Court

emphasized that a motion judge should evaluate the evidence in the

28
same manner as a motion for a directed verdict at the end of a

plaintiff’s case at trial, R. 4:37-2(b), and observed that the

essence of the inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.”

Brill, supra, 142 N.J. at 536, quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d

202, 214 (1986).

In determining whether there exists a genuine issue of

material fact that precludes summary judgment, a court must

consider “whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party,

are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party.” Brill,

supra., 142 N.J. at 540. It is only when the evidence is “so one-

sided that one party must prevail as a matter of law,” that a court

should grant a motion for summary judgment.” DeAngelis v. Hill,

180 N.J. 1, 12 (2004). In this respect, a leading authority notes:

Obviously, the motion for summary judgment should be

denied when determination of material disputed facts
depends primarily on credibility evaluations or when the
existence of a genuine issue of material fact appears
from the discovery materials or from the pleadings and
affidavits on the motion.

29
Pressler and Verniero, Current N.J. Court Rules, Comment 2.3.2 on

R. 4:46-2 (Gann 2021).

In the instant case, because questions of material facts were

in dispute, the summary judgment Order entered on March 22, 2021

should be vacated and reversed.

30
 CONCLUSION

For all of the foregoing reasons, the Plaintiff-Appellants,

Noreen Flugger and Margaret Hayes, respectfully request the

Appellate Division to reverse (1) the Law Division’s Order entered

on December 18, 2020, which denied the Plaintiffs’ motion for

recusal; and (2) the Law Division’s Order for summary judgment

entered on March 22, 2021.

Respectfully Submitted,

// Martin V. Asatrian //
MARTIN V. ASATRIAN, ESQ.

Date: August 22, 2021

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