In a case that’s already made headlines because of the issue of gender in school sports, a New Jersey judge has been charged with ethics violations for allegedly acting belligerently after her daughters were expelled from their parochial school during litigation against the school.
The state Supreme Court’s Advisory Committee on Judicial Conduct filed a complaint against Union County Superior Court Judge Theresa Mullen on Monday, and made the charges public on Thursday.
Meanwhile Mullen, through her attorney, is contending that the complaint includes factual inaccuracies and is missing facts.
According to reports and the complaint, the issue dates back to 2016, when Mullen learned that one of her daughters, Sydney Phillips, a middle school student at St. Theresa’s School in Kenilworth, would not be allowed to play on the boys basketball team even though the girls team had been discontinued for lack of student participation.
Mullen’s husband, Scott Phillips, in December 2016 filed a civil complaint in Superior Court asking that the school be ordered to allow Sydney, then a seventh-grader, to play for the boys team, the documents said.
Union County Superior Court Judge Donald Kessler initially denied the application, but in February 2017 reversed himself after learning that girls were allowed to play on the boys team at St. John’s School in Clark.
According to the documents, Sydney eventually played on the boys team, and she and her sister, Kaitlyn, finished the 2016-17 year at St. Theresa’s—but it was confrontations in the interim that led to the filing of the ACJC complaint.
On Feb. 1, 2017, Margaret Dumas, the secretary for education for the Archdiocese of Newark, wrote to Phillips and Mullen that they were required to withdraw their girls from the school because of the litigation. Dumas, citing the parent-student handbook, said children could not attend any of the schools in the archdiocese if their parents were involved in any litigation against the archdiocese.
Phillips and Mullen, according to the complaint, refused to withdraw their girls from St. Theresa’s.
The next day, Mullen arrived at the school with her children and were confronted publicly by school officials and Kenilworth police, who had been notified that news media would be present, the complaint said.
Mullen, the complaint said, was repeatedly told to leave the school grounds but refused. Instead, the complaint said, she insisted that she be put in handcuffs and be arrested. Eventually, Kenilworth police removed Mullen from the school grounds, and school officials filed a trespassing complaint against her.
The school then wrote a letter to Phillips and Mullen saying that their children’s applications for the following school year would not be accepted.
In the wake of the incidents, the archdiocese began receiving letters from other parents of St. Theresa’s students, alleging “bullying, rudeness, intimidation and harassment” by Phillips and Mullen, the complaint alleged.
One parent wrote that the family had “become so litigious in nature that we as parents are afraid to speak out against them for fear of retribution,” according to the complaint. Another parent wrote: “I fear they will not stop until they get what they want,” the ACJC said.
Phillips and Mullen, the complaint noted, are in the midst of litigation to have their girls readmitted to the archdiocese’s schools.
Mullen, the complaint said, initially refused to appear for a deposition, and when she did appear refused to answer “95 percent” of the questions posed to her, in violation of the rules of civil procedure.
The complaint also noted that Kessler denied Mullen’s demand that the record in the case be sealed temporarily.
As for the trespassing complaint, in January, Assignment Judge Alberto Rivas found Mullen guilty of defiant trespass, and noted that Mullen, when testifying, was “combative and evasive,” according to the ACJC.
The complaint, while not specifying the quantum of discipline sought, said Mullen failed to meet the high expectations meant for members of the judiciary, impugned the judiciary, and demeaned her office by failing to comply with court rules and ethics guidelines.
It is likely that her case will be considered by the ACJC as a panel, and then by the Supreme Court.
Mullen did not return a call, but her attorney, Westfield solo Susan McCrea, said there are “many inaccuracies” in the complaint that will be addressed when Mullen files an answer. “There are facts that haven’t seen the light of day,” McCrea said.
McCrea added that both Sydney and Kaitlyn were subjected to bullying and harassment while attending the school. The children are now in public school, McCrea said.
The lawyer for the archdiocese, Christopher Westrick of Roseland’s Carella, Byrne, Cecchi, Olstein, Brody & Agnello, declined to comment on the ethics charges but noted that Kessler already has ruled that the archdiocese is not obligated to readmit the two girls.
Mullen, admitted to the bar in 1993, had been a solo in Cranford before her nomination to the bench in 2014 by Gov. Chris Christie. She focused on personal injury work, contracts and general litigation.
Mullen practiced briefly at the Law Offices of Floyd Cottrell in Newark before starting her own firm. From 2003 to 2006, Mullen was with Tressler Soderstrom Maloney & Priess in Newark. She was with Sachs, Maitlin. Fleming, Greene, Marotte & Mullen in West Orange from 1997 to 2003, and from 1994 to 2007 was with the Law Offices of William Cambria, which served as the in-house counsel for the Archdiocese of Newark.
Mullen is a graduate of Lehigh University and the Albany Law School of Union University.