CASSANDRA WILTZ v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4542-08T1

CASSANDRA WILTZ,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, PETER C.

HARVEY, JAMES R. MICHAEL, HOWARD

H. KESTIN, MARY CATHERINE CUFF,

JAMES D. BRIDE, NEW JERSEY DIVISION

ON CIVIL RIGHTS, ROLANDO TORRES,

NEW JERSEY OFFICE OF ADMINISTRATIVE

LAW, BARBARA A. HARNED, JEFF S. MASIN,

JOSEPH F. MARTONE, EXECUTIVE COMMISSION

OF ETHICAL STANDARDS, RITA STRMENSKY,

UNILEVER UNITED STATES INC., STEPHEN E.

KLAUSNER, KLAUSNER & HUNTER, RON

SOIEFER, NATIONAL STARCH & CHEMICAL

COMPANY, PETER C. MALOFF, HILARY L.

JANEL (A/K/A HILARY L. KELLY), MICHAEL I.

FENSTER, COLLIER, JACOB & MILLS (A/K/A

JACOB & MILLS), FISHER & PHILLIPS, and

ALAN G. LESNEWICH,

Defendants-Respondents,

and

O. LISA DABREU and ROBERT F. D'EMILIA,

Defendants.

_____________________________________________________

March 16, 2011

 

Submitted February 14, 2011 Decided

 

Before Judges Rodr guez and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Somerset County, Docket No. L-1812-06.

 

Cassandra Wiltz, appellant pro se.

 

Stephen E. Klausner, respondent pro se and attorney for respondent Klausner & Hunter.

 

Fisher & Phillips, respondent pro se and attorneys for respondents Unilever United States, Inc., Ron Soiefer, National Starch & Chemical Company, Peter C. Maloff, Hilary L. Janel, Michael I. Fenster, Collier, Jacob & Mills,Fisher &Phillips, andAlan G.Lesnewich (Rosemary S. Gousman, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondents State Of New Jersey, Peter C. Harvey, James R. Michael, Howard H. Kestin, Mary Catherine Cuff, James D. Bride, New Jersey Division On Civil Rights, Rolando Torres, New Jersey Office Of Administrative Law, Barbara A. Harned, Jeff S. Masin, Joseph F. Martone, Executive Commission Of Ethical Standards, and Rita Strmensky (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

 

PER CURIAM

Cassandra Wiltz appeals from several orders dismissing her claims against the defendants. We affirm.

In 1990, Wiltz filed an action with the New Jersey Division on Civil Rights (DOCR), alleging race and gender discrimination in the form of "differential treatment and pay, harassment, denial of promotion and reprisals," against her former employer National Starch and Chemical Company (National). The DOCR referred the claim to the Office of Administrative Law (OAL) as a contested case. Stephen Klausner, a member of the firm Klausner & Hunter, represented Wiltz for the first seventy-four days of the subsequent hearings. Wiltz terminated Klausner before the conclusion of the hearings and represented herself for the final five days. Following these extensive fact-finding hearings, Administrative Law Judge (ALJ) Joseph A. Martone issued an initial decision, dismissing Wiltz's claims based "on credibility determinations adverse to [Wiltz]" as well as her failure to "establish the factual basis for her claims."

Wiltz appealed. Judges Kestin and Cuff determined that the ALJ's factual and credibility findings were supported by the record, and Wiltz had failed to substantiate the alleged denial of due process. Wiltz v. Unilever U.S., Inc. No. A-3761-97 (App. Div. Dec. 3, 2004), certif. denied, 183 N.J. 257 (2005).

After the Supreme Court denied certification, Wiltz filed a seventy-three page complaint in the Law Division against the defendants alleging that: evidence was improperly included or excluded from the OAL record; her complaints against an OAL judge and her prior attorney were not investigated; and that the private and State participants in her discrimination case conspired to deprive her of due process and circulate allegedly defamatory court decisions to potential employers. She also sought damages for the loss of her employment and for mental distress. Lastly, Wiltz demanded injunctive relief to correct alleged irregularities in Judge Kestin's and Judge Cuff's unpublished decision.

On March 16, 2007, Judge Kumpf dismissed Wiltz's claims against the OAL, DOCR, Executive Commission of Ethical Standards, Judge Kestin and Judge Cuff because Wiltz did not file a notice of claim within ninety days of the accrual of her claim, and her failure to comply with the two-year statute of limitations in the Torts Claims Act (TCA). N.J.S.A. 59:8-8(a),(b). Notwithstanding these procedural deficiencies, the judge also found that these State defendants were entitled to absolute judicial or qualified legislative immunity pursuant to N.J.S.A. 59:2-1(a) and 59:3-2(b). Therefore, without evidence that these defendants' "conduct constituted a crime, actual fraud, actual malice or willful misconduct," the defendants were immune from suit. N.J.S.A. 59:3-14.

Wiltz moved to vacate the order, alleging that the State had not properly served her with their motion. Judge Kumpf denied the motion because the State submitted conclusive evidence that she had signed for receipt of the motion at her residence in a timely manner.

On June 11, 2007, Judge Kumpf dismissed the complaint against the former Attorney General, the Deputy Attorney General (DAG) assigned to the DOCR, the Chairman of the District X Ethics Committee, the former Commissioner of the DOCR, several Administrative Law Judges (ALJ), and the Deputy Director of the ECES, because Wiltz did not file a notice of claim and her action was untimely. N.J.S.A. 59:8-8(a), (b). These defendants were similarly entitled to absolute judicial or qualified legislative immunity. Moreover, Wiltz's medical expenses also did not exceed the TCA threshold of $3600. N.J.S.A. 59:9-2(d). Lastly, the judge determined that none of the State defendants making the motion were "persons" within the meaning of 42 U.S.C. 1983.

Judge Kumpf granted summary judgment to defendants National, Peter C. Maloff, Fisher & Phillips LLC, Alan Lesnewich, Collier Jacob & Mills, Hilary L. Janel, Ronald Soeifer and Unilever United States, Inc. on July 20, 2007 because none of these parties were state actors within the meaning of 42 U.S.C.A. 1983 and 1985 and two-year statute of limitations had expired. The claims for intentional infliction of emotional distress and defamation were absolutely privileged by the litigation privilege. Lastly, these claims had been litigated to finality in Wiltz's prior discrimination action. Therefore, Judge Kumpf determined that Wiltz's claims were barred by the doctrine of res judicata. Judge Anthony F. Picheca adopted Judge Kumpf's findings and granted summary judgment to Michael I. Fenster on August 10, 2007.

Not accepting the sound legal conclusions articulated by Judge Kumpf, Wiltz moved to disqualify him based on his alleged ex parte communications with defendants, as well as the "civil and/or criminal charges [Wiltz] filed against" him. Judge Kumpf denied this motion on October 19, 2007.

Judge Picheca granted ALJ Bride and ALJ Harvey's motion to dismiss on January 29, 2008 because Wiltz had not filed the notice of claim; the claims were untimely; and the judges were immune from suit. Judge Picheca also dismissed the complaint as to the former Director of the OAL and Chief ALJ on February 25, 2008 for the same reasons.

On January 29, 2008, Judge Picheca also dismissed Wiltz's complaint against Stephen Klausner and Klausner & Hunter. The judge found that any claim Wiltz may have had concerning Klausner's representation accrued before July 1996, when Wiltz terminated the representation. Because Wiltz brought suit in 2006, any claim was "well outside the two-year statute of limitations."

Wiltz argues on appeal that: (1) the judges and proceedings were biased against her; (2) she was denied due process during the proceedings; and (3) the judges' decisions were clearly erroneous, arbitrary, capricious and unreasonable, based upon erroneous applications/interpretations of law and inappropriate standards, or were not supported by the evidence.

We reject all of these claims for several reasons. First, most of these claims against the defendants were barred by the doctrine of res judicata.

The doctrine of res judicata provides that "when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation." Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989) (quoting Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960)). Res judicata is properly invoked where there are "substantially similar or identical causes of action and issues, parties and relief sought." Culver, 115 N.J. at 460; First Union Nat. Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 423 (2007) ("If an issue between the parties was fairly litigated and determined, it should not be re-litigated.")

Here, the arguments Wiltz raises concerning due process and alleged bias were raised in her direct appeal of the failed discrimination claim. Further, the private defendants in this appeal were the defendants in Wiltz's discrimination case. Indeed, Wiltz seeks the same relief as in her discrimination action, including back pay and front pay. She also seeks order replacing the unpublished decision affirming the dismissal of her discrimination case. Wiltz essentially seeks to relitigate and replace her former discrimination action after exhausting her options for appeal. Consequently, the doctrine of res judicata bars Wiltz's claims against these private defendants.

The State defendants are also all entitled either to absolute judicial immunity or to qualified immunity pursuant to the TCA. It is well-settled that "[j]udges are absolutely immune from liability for their judicial acts." K.D. v. Bozarth, 313 N.J. Super. 561, 568 (App. Div. 1998), certif. denied, 156 N.J. 425 (1998). This absolute immunity requires only that "1) the act complained of must be a 'judicial act;' and 2) the judge must have subject matter jurisdiction at the time he or she acts." Ibid.

Here, the defendant judges performed quintessentially judicial acts by adjudicating Wiltz's discrimination case. Each did so with valid subject matter jurisdiction. Therefore, the judges are entitled to absolute judicial immunity.

Public employees are also afforded immunity for "legislative or judicial action or inaction; or administrative action or inaction of a legislative or judicial nature." N.J.S.A. 59:3-2(b). This immunity is qualified, however, and will not protect a public employee whose actions constitute a "crime, actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14.

H

ere, Wiltz refers repeatedly to "actual malice." Although she invokes the operative language, she does not substantiate these broad allegations with evidence demonstrating that the State defendants' activities were sufficiently nefarious to strip them of their qualified immunity. Instead, the record provides ample evidence that each of the State defendants performed his or her duties in an appropriate and professional manner.

Affirmed.