One bite at the apple of justice - Nicholson v. Freeport Union Free School Dist.

While the infliction of severe pain on children and adults at JRC has been challenged in the courts time and time again, the legal system of the United States has failed to provide basic human rights protections for this population.

-- From "Torture Not Treatment," an Urgent Appeal to the U.N. Special Rapporteur on Torture

Antwone Nicholson has lost his case against the Freeport Union Free School District, the New York school district that placed Antwone as a special education student at the infamous Judge Rotenberg Educational Center (JRC) in Canton, Massachussetts. I wrote about the JRC a couple of months ago. Since then, a human rights organization known as Mental Disability Rights International has filed an Urgent Appeal with the United Nations Special Rapporteur on Torture, requesting that the UN investigate JRC. In its Urgent Appeal, MDRI says that domestic remedies have failed.

Antwone Nicholson and his mother, Evelyn, have been trying to find a remedy for damages caused to Antwone from being subjected to punishment by electricity at JRC. In a May 2006 article in the Boston Globe, the Nicholsons' complaint was described as the impetus for the New York State Education Department's enactment of emergency regulations putting tighter limits on the use of electric shock and other aversives on students from New York.

Antwone and Evelyn also sued the State of New York in the New York Court of Claims for violating New York education law and Antwone's civil rights by putting JRC on on the State Education Department's list of approved schools for New York students. The Nicholsons lost that case in December 2008. Nicholson v. State of New York, 23 Misc.3d 313, 872 N.Y.S.2d 846 (Cl. Ct. 2008). The Court of Claims decided that the Nicholsons didn't have a right to sue the State of New York, but suggested that they could "pursue judicial remedies against JRC and the local school district ... ."

Antwone and Evelyn had, in fact, sued the JRC and the local school district, Freeport Union, in December of 2006. The case is Antwone Nicholson and Evelyn Nicholson v. Freeport Union Free School District and The Judge Rotenberg Educational Center, Inc., Supreme Court of New York, Nassau County, Case No. 11506/06. (In many states and in the federal system, the supreme court is the highest appellate court. In New York, it's the trial court.) In May of 2009, the Supreme Court judge denied the school district's motion for summary judgment, finding that there were "questions of fact regarding the role and responsibility of defendant Freeport in the education of plaintiff that precludes summary disposition." The school district appealed and won.

On June 8, 2010, the Appellate Division of the Supreme Court of New York reversed the trial court's order, holding that the school district was entitled to summary judgment in its favor. Nicholson, et al. v. Freeport Union Free School Dist., et al., 2010 NY Slip Op 04975. (The Appellate Division is New York's intermediate appellate court, with the Court of Appeals being the state's highest court.)

In order to use skin shock on Antwone, JRC went to the Massachusetts probate court for permission, as it does in all cases. In these proceedings, the JRC student is represented by counsel. So Antwone was represented at the probate hearing by his attorney and Antwone's mother, Evelyn, was also there. The probate judge approved the use of skin shock on Antwone before it was used.

The New York appeals court concluded that, because the Massachusetts court had already decided that it was okay to shock Antwone with electricity, and because Antwone and his mother were present or represented at the hearing, they are barred by the doctrine of collateral estoppel from asking the New York court to decide the same issue again.

The doctrine of collateral estoppel, or "issue preclusion," prevents a party from litigating an issue that has already been decided against him or her in another court. It is a doctrine of fairness that is meant to promote judicial economy and the finality of judgments. If a court decides an issue of fact or law against you, and you had a full and fair opportunity to litigate that issue in the first court, then you can't go to another court and ask that it decide the identical issue. You only get one bite at the apple.

To me, the pertinent inquiry in the Nicholson case is, how do we know that the Nicholsons had a full and fair opportunity to litigate the issues of the appropriateness and legality of the GED use in probate court? The Nicholson appeals court says simply that they appeared in the proceedings. That's not enough.

Under New York law, a court has to consider the realities of litigation and various factors to determine whether there was a full and fair opportunity to litigate an issue in a prior proceeding:

Thus we noted in the Schwartz case (at p 72) that when collateral estoppel is in issue, the question as to whether a party had a full and fair opportunity to litigate a prior determination, involves a practical inquiry into "the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation" (see, also, Restatement, Judgments 2d [Tent Draft No. 3], § 88).

Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 423 N.E.2d 807 (1981).

So, what about the probate proceeding in Massachusetts? What was the nature of that proceeding? What opportunity was actually given to Evelyn and Antwone to litigate the issues of the appropriateness and legality of using electric shock on Antwone? Who was Antwone's attorney, and what level of competence and experience did he or she have? Is there new evidence available for the later proceeding that wasn't available to Evelyn and Antwone in the Massachusetts proceeding? What differences are there in the law to be applied in the Massachusetts case and the New York case? The New York court didn't look at *any* of these factors, and therefore didn't do a proper analysis of whether the doctrine of collateral estoppel applies in this case.

I have always wondered about JRC's probate proceedings. If JRC is also going to use collateral estoppel as a defense in Nicholson, or in any other case, I hope that information about the nature of these proceedings and how they work will be fully developed.

As far as I can tell from the docket, the Nicholsons are heading for trial against JRC, even through Freeport Union Free School District won its appeal. The Nicholsons' attorney is Kenneth M. Mollins of Melville, New York.

Will the legal system of the United States will provide Antwone Nicholson with a remedy?